385.732 
Il6d1900 
v.1,  v.2 
cop. 2 


••  .:  f'J     ': 


.  :       .    .AOAW'S       . 

Afi8TlClAN,     INTERSTATE 


\ 


THE  UNIVERSITY 

OF  ILLINOIS 

LIBRARY 

385  T32 

i-e&a 


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DECISIONS  AND  OPINIONS 

,S 


OF  THE 


OF    THE 


STATE  OF  ILLINOIS 


1889  to  1899 

\A  I.Z 


COMPILED  BY 
WM.   KlLPATRIOK 

Secretary. 


SPRINGFIELD.  ILL.: 

PHILLIPS  BROS..  STATE  PRINTERS 

1900. 


BEFORE  THE 


STATE 


of 


THE  CHICAGO  &  CALUMET  TERMINAL  RAILROAD  Co. 

PETITIONER. 


VS. 


THE  CHICAGO,  BURLINGTON  •&  QUINCY  RAILROAD  Co. 

RESPONDENT. 


PETITION    TO    DETERMINE    MODE    OF    CROSSING. 


Petition  Filed  September  6,  1889. — Crossing  Viewed  September  12,  1889. 
Answer  Filed  September  26,  1889. — Hearing  September  26, 
to  October  10,  1889  — Opinion  Filed  Novem- 
ber 30,  1889. 


APPEARANCES: 

For  Petitioner,  COL.  R.  S.  THOMPSON  AND  H.  S.  MONROE. 
For  RESPONDENT,  WIRT  DEXTER. 


OPINION  OF  THE  COMMISSION. 


STATEMENT  OF  FACTS. 

The  petitioning  company,  the  Chicago  &  Calumet  Terminal  Rail- 
road Company,  seeks  by  this  proceeding  a  decision  of  this  Commis- 
sion under  the  act  in  force  July  1st,  1889,  compelling  respondent,  the 
Chicago,  Burlington  &  Quincy  Railroad  Company,  to  permit  peti- 
tioner to  cross  respondent's  tracks  at  a  point  in  the  village  of  La 
Grange,  Cook  county,  Illinois,  on  grade.  The  point  of  proposed 
crossing  is  near  fourteen  miles  out  from  respondent's  Chicago  depot. 
The  prayer  of  the  petition  is  resisted  on  the  ground  that  a  grade 
crossing  at  the  point  in  question  would  "unnecessarily  impede  and 
endanger  the  travel  and  transportation"  upon  respondent's  road. 

The  petition  alleges  among  other  things,  the  following:  That  pe- 
titioner is  a  corporation  organized  and  existing  under  and  by  virtue 
of  laws  of  the  State  of  Illinois;  that  it  has  laid  out  its  route  and  par- 
tially constructed  its  tracks  from  Lake  Michigan  to  near  the  Des 
Plaines  river,  and  reached  a  point  near  the  right  of  way  and  railroad 
tracks  of  respondent,  and  is  desirous  of  building  its  road  and  con- 
structing its  tracks  across  the  right  of  way  and  tracks  of  said  respond- 
ent near  where  they  cross  the  west  line  of  section  three,  (3)  town 
thirty-eight  (38)  North,  range  twelve  (12)  east,  in  Cook  county, 
Illinois;  that  it,  the  petitioner,  desires  to  cross  said  tracks  upon  a 
level  with  its  own  tracks,  and  offers  to  be  at  the  entire  expense  of 
constructing  said  crossing,  introducing  and  maintaining  a  system  of 
inter-locking  signals,  paying  all  salaries  and  expenses  of  the  same, 
and  to  give  all  the  trains  of  respondent  preference  and  precedence  at 
said  crossing;  that  petitioner  has  demanded  of  respondent  that  it  be 
permitted  to  cross  at  grade,  but  permission  to  do  so  has  been  refused ; 
that  respondent  insists  that  petitioner  cross  said  tracks  and  right  of 
way  at  an  elevation  of  not  less  than  twenty-one  feet  clear  above  the 
top  of  the  rails  of  petitioner's  track,  which  will  make  an  elevation  of 
from  twenty-five  to  thirty  feet;  that  the  point  at  which  petitioner 
desires  so  to  cross  is  part  of  a  level  plain  extending  miles  each  way; 
that  a  crossing  upon  grade  with  proper  signals  and  appliances  will 
not  unnecessarily  impede  or  endanger  the  travel  or  transportation  of 
the  respondent  company;  that  an  overhead  crossing  is  more  danger- 
ous to  foot  and  carriage  passengers  seeking  to  cross  the  tracks  of  the 
road  running  under  an  elevated  crossing  than  a  crossing  on  its  grade ; 

746685 


that  the  property  owners  in  that  vicinity  are  opposed  to  such  over- 
head crossing,  and  threaten  to  bring  suit  for  damages  to  enjoin  the 
same;  that  the  trustees  of  the  town  of  La  Grange  wherein  said  pro- 
posed crossing  is  located  are  taking  measures  to  enjoin  the  erection 
of  an  overhead  crossing  for  the  reason  that  such  a  crossing  is  unnec- 
cessary  and  will  create  a  perpetual  nuisance,  and  will  injure  and  de- 
preciate the  value  of  property  in  its  immediate  vicinity.  The  petition 
prays  for  a  decision  of  the  Commission  prescribing  the  place  where 
and  in  the  manner  in  which  said  crossing  shall  be  made. 

In  answer  to  this  petition  the  respondent  Company  admits  that 
petitioner  has  laid  out  its  route  and  partially  constructed  its  tracks 
as  alleged;  that  demand  was  made  upon  it  by  petitioner  for  a  grade 
crossing,  and  that  respondent,  believing  that  a  grade  crossing  would 
unnecessarily  impede  both  the  travel  and  transportation  upon  its- 
railway,  refused  said  demand.  Respondent  denies  the  averment  that 
said  proposed  grade  crossing  will  not  unnecessarily  impede  or  en- 
danger the  travel  or  transportation  upon  its  railway,  and  alleges  the 
contrary  to  be  the  fact;  and  says  that  respondent  owns  and  operates 
6,000  miles  of  railroad  converging  at  Chicago,  which  is  its  eastern 
terminus,  and  has  traffic  arrangements  with  other  companies,  con- 
necting with  respondent's  lines;  that  all  traffic  over  respondent's  road 
destined  to  or  from  Chicago,  or  east  by  way  thereof,  passes  over  said 
tracks  proposed  to  be  crossed;  that  in  the  regular  course  of  respond- 
ent's business,  fifty  trains  in  each  direction,  or  one  hundred  trains 
in  all  each  day  pass  over  respondent's  tracks  at  the  point  of  the  pro- 
posed crossing,  about  half  being  freight  trains  and  the  other  half 
passenger  trains;  that  respondent  has  now  three  tracks  at  the  point 
in  question  and  the  increase  of  its  business  will  soon  require  the 
building  of  a  fourth,  and  that  the  increase  in  population  and  develop- 
ment of  business  are  likely  to  cause  the  necessity  for  double  the 
number  of  trains  upon  respondent's  tracks  within  ten  years;  that  re- 
spondent in  addition  to  its  general  passenger  and  freight  trains  is 
now  doing  a  very  large  suburban  business,  nearly  all  of  which  orig- 
inates west  of  said  proposed  crossing;  that  about  2,500  suburban 
passengers  pass  over  respondent's  road  each  day  at  the  point  of  said 
proposed  crossing,  which  suburban  traffic  is  constantly  increasing  at 
the  rate  of  twenty-five  or  thirty  per  cent  per  year;  that  the  point  of 
said  proposed  crossing  is  at  the  foot  of  a  maximum  grade,  and  that 
trains  at  said  point  both  ways  run  at  a  maximum  speed;  that  west 
bound  trains  are  obliged  to  run  at  high  speed  at  said  point  for  the 
purpose  of  making  the  ascending  grade;  that  if  the  proposed  grade 
crossing  is  made  all  trains  of  respondent  will  be  compelled  to  reduce 
speed  at  the  point  of  crossing  to  a  very  low  rate;  that  in  addition  to 
the  delay  which  will  thus  be  caused,  many  trains  will  be  compelled 
to  stop  and  wait  for  trains  on  petitioner's  road  to  pass  the  crossing; 
that  on  account  of  the  necessity  of  running  at  a  low  rate  of  speed 
and  making  possible  stops  at  this  point,  respondent's  west  bound 
trains  could  not  run  for  the  grade  at  this  point  as  heretofore,  and 
respondent  would  be  compelled  for  this  reason  to  reduce  the  length 
of  many  of  its  west  bound  freight  trains;  that  it  is  entirely  prac- 
ticable for  petitioner  to  cross  respondent's  railway  either  by  an  over- 


head  or  an  under  crossing;  that  the  trustees  and  citizens  of  the  town 
of  La  Grange  where  said  crossing  is  located  are  opposed  to  a  cross- 
ing at  grade  as  unnecessarily  impeding  and  endangering  public 
travel. 

At  the  hearing  respondent,  having  abandoned  its  previous  alleged 
contention  for  an  overhead  crossing,  presented  to  the  Commission  a 
proposition  and  estimate  for  an  under  crossing,  which  proposition 
and  estimate  contemplated  the  raising  of  respondent's  roadbed  by 
petitioner,  at  the  point  of  the  crossing  to  an  elevation  eight  feet 
above  its  present  position,  being  in  all  nearly  twelve  feet  above  the 
natural  surface,  and  that  the  petitioner  should  make  a  cut  twelve  feet 
below  the  natural  surface  at  the  point  of  crossing,  so  as  to  admit  of 
its  trains  passing  under  the  tracks  of  respondent.  . 

Upon  proof  being  made,  however,  to  the  effect  that  the  stage  of 
high  water  in  salt  Creek,  about  one  mile  distant,  which  would  form 
the  only  outlet  for  drainage  of  the  proposed  cut,  would  not  admit  of 
the  cut  being  drained,  if  extended  to  the  depth  of  twelve  feet  as  pro- 
posed, the  respondent  Company  presented  modifications  of  its  prop- 
osition and  estimate  to  meet  such  proofs.  Respondent's  amended 
proposition  contemplates  the  raising  of  the  Bnrlington  tracks  about 
eleven  feet  instead  of  eight  as  before  proposed,  and  a  corresponding 
reduction  of  the  depth  of  the  cut  to  be  made  for  petitioner's  road  so 
to  admit  of  what  respondent  contends  would  be  complete  drainage  to 
Salt  Creek  during  high  water;  all  the  work  to  be  done  of  course  by 
the  petitioning  Company.  In  addition  to  this  respondent's  counsel  at 
the  close  of  the  hearing  made  an  oral  offer  that  respondent  would  pay 
one-third  of  the  increased  cost  of  constructing  the  crossing  in  ac- 
cordance with  their  amended  proposition  over  and  above  what  such 
cost  would  be  if  the  crossing  were  made  at  grade;  also  one-third  of 
all  damages  adjudged  against  petitioner  and  in  favor  of  adjacent 
property  owners  on  account  of  the  construction  of  the  crossing  in 
the  manner  proposed;  also  one-third  of  the  increased  cost  of  all 
switch  connections.  It  may  be  said  in  passing  that  these  propositions 
of  respondent  to  permit  its  tracks  to  be  raised  and  to  pay  part  of  the 
expenses  of  the  crossing  are  not  within  the  power  or  jurisdiction  of 
the  Commission  to  be  ordered  or  enforced,  and  would  depend  en- 
tirely upon  the  respondent's  own  voluntary  stipulation. 

There  is  little  real  conflict  in  the  evidence  heard  by  the  Commis- 
sion except  upon  a  few  subsidiary  questions.  It  is  conceded  that 
these  roads  approach  each  other  upon  a  level  plain  which  offers  no 
natural  facilities  for  any  crossing  other  than  at  grade;  nor  can  this 
be  avoided  by  any  change  in  the  place  of  crossing  proposed;  the  ad- 
jacent country  is  all  flat.  It  is  also  a  fact  not  controverted  that  pe- 
titioner had  obtained  its  charter  and  begun  construction  of  its  road 
before  this  law  was  passed;  that  its  road  is  to  be  chiefly  for  the  car- 
riage  of  freight,  its  object  being,  as  its  name  indicates,  to  form  con- 
nections with  the  various  lines  of  road  out  from  Chicago,  including 
of  course  the  lines  of  respondent,  so  as  to  distribute  among  these 
lines  the  products  of  the  large  factories  in  the  vicinity  of  Calumet 
Lake.  So  the  allegations  of  the  answer  touching  the  extent  of  re- 


spondent's  passenger  and  freight  traffic,  the  number  of  its  trains,  the 
state  of  its  grade  at  the  crossing  point,  and  the  resultant  necessity  of 
speed  being  made  by  its  trains  are  practically  uncontroverted.  It  is 
conceded  that  to  make  a  non-grade  crossing  a  clear  passage  way  of 
twenty  feet  from  top  of  rail  to  lowest  point  of  superstructure  above 
is  necessary;  and  that,  to  obtain  this  twenty  foot  clearing,  there 
would  be  a  necessity  for  a  considerable  additional  distance  taken  up 
by  rails,  ties,  ballast  and  side  ditches,  for  drainage  of  the  servient 
roadbed. 

In  the  course  of  the  hearing  memorials  and  petitions  were  pre- 
sented from  the  municipal  authorities  and  residents  of  several  towns 
on  the  line  of  respondent's  road,  including  La  Grange,  favoring  an 
under  crossing.  Before  the  proposition  for  such  an  under  crossing 
had  been  made,  however,  a  petition  had  been  numerously  signed  by 
adjacent  property  owners  in  La  Grange  strongly  favoring  a  grade 
crossing  as  against  the  overhead  crossing  then  contemplated.  It  may 
therefore  be  taken  that  public  sentiment  among  residents  in  the 
vicinity  generally  favors,  first  an  under  crossing  by  petitioner  if  that 
can  be  had,  and  if  not  then  a  grade  crossing;  and  that  an  overhead 
crossing  is  more  objectionable  than  any  other.  Such  is  the  import 
of  the  public  expressions  before  the  Commission,  which,  though  per- 
haps not  in  strictness  legal  evidence,  the  Commission  felt  constrained 
to  hear  and  consider  for  whatever  they  might  be  worth.  Many  per- 
sons owning  property  immediately  adjoining  the  roads  naturally  op- 
pose the  unsightliness  and  inconvenience  of  either  a  high  embank- 
ment or  a  deep  cut,  insisting  that  the  value  of  such  adjacent  prop- 
erty would  be  thereby  greatly  lessened,  a  conclusion  not  easily  to  be 
resisted 

One  question  upon  which  there  is  some  conflict  in  the  evidence  is, 
whether  or  not  a  reduction  of  speed  is  necessary  at  crossings  where 
the  latest  improved  inter-locking  signals  and  devices  are  in  use. 
Upon  this  question  we  think  the  evidence  preponderates  in  number 
and  certainly  in  credibility  that  it  would  not  be  perfectly  safe  (at 
least  so  long  as  no  device  for  a  continuous  rail  at  crossings  is  brought 
into  use)  for  trains  to  pass  crossings  otherwise  than  "under  con- 
trol." The  Commission  has  not  so  far,  at  any  rate,  seen  its  way  to 
issue  permits  to  railroads  to  pass  crossings  having  inter-locking  de- 
vices, without  the  train  being  at  the  time  under  "control."  As  to- 
what  is  "control,"  it  appears  from  the  evidence,  that  for  an  ordinary 
passenger  train,  "control"  would  be  a  speed  of  about  fifteen  miles 
per  hour;  and  this  would,  of  course,  vary  inversely  with  weight  and 
consequent  momentum  of  train. 

There  is  also  some  conflict  upon  the  question  as  to  whether  im- 
proved crossing  devices  have  entirely  eliminated  the  element  of  dan- 
ger at  railroad  crossings,  where  the  same  are  in  use.  That  they  have 
great  efficacy  in  preventing  accidents  is  conceded.  Where  the  latest 
inter-locking  devices  are  used  there  is,  indeed,  very  little  probability 
of  a  collision  between  trains.  A  derailment  of  one  train  may  occur  if 
the  engineer  is  not  attentive  to  signals;  but  a  collision  would  be  pos- 


sible  only  in  the  event  that  the  derailed  train  were  heavy  enough  or 
moving  with  sufficient  momentum,  to  pass  over  the  ground  or  ties 
from  the  derailing  point  up  to  the  crossing,  proper,  a  distance  us- 
ually of  about  three  hundred  feet. 

Under  the  evidence  before  us  as  to  danger  and  delay  our  view  con- 
trains  us  to  consider  this  case  upon  the  basis,  first,  that  wherever 
two  trains  are  liable  even  by  possibility  to  pass  through  the  same 
space  there  must  necessarily  be  some  danger  to  those  who  ride,  and 
second,  that  a  reduction  of  speed  of  trains  down  to  the  point  of  "con- 
trol" would  be  necessary,  or  at  least  prudent,  at  all  grade  crossings 
however  equipped.  We  see  therefore  that  there  must  be  some  delay 
to  travel  and  transportation,  and  also  a  small  liability  to  danger  in 
the  case  of  all  grade  crossings.  Whether  or  not  such  delay  and  such 
danger  would  be  "unnecessary"  within  the  meaning  of  that  term  as 
used  in  the  statute,  all  circumstances  and  surroundings  of  the  pro- 
posed crossing  duly  considered,  is  the  question  for  our  decision. 

Most  of  the  evidence  before  us  has  been  addressed  to  the  question 
of  fixing  the  point  of  high  water  in  Salt  Creek.  The  high  water 
point  is  important  to  be  arrived  at  with  reasonable  certainty  as  it 
bears  directly  upon  the  question  of  drainage,  and  drainage  is  an  es- 
sential element  of  respondent's  plan.  If  the  point  fixed  by  some  of 
petitioner's  witnesses  be  taken  as  the  ordinary  high  water  point, 
an  under  crossing  by  the  petitioning  road  would  be  rendered  entirely 
impracticable,  as  only  a  very  shallow  cut  could  be  drained  in  time  of 
high  water;  and  an  under  crossing  on  that  basis  would  really  mean 
the  raising  of  respondent's  road  to  such  height  as  would  make  the 
crossing  in  fact  an  over  crossing  by  that  road,  subject  to  the  many 
and  grave  objections  such  a  structure  naturally  raises.  Upon  the 
other  hand  if  we  should  assume  the  lowest  point  fixed  by  some  of 
the  witnesses  of  respondent  as  being  high  water  mark,  feasible  drain- 
age could  be  obtained  for  a  twelve-foot  cut  as  contemplated  by  the 
first  proposition  of  respondent.  Without  discussing  the  evidence  in 
detail  which  is  deemed  unnecessary,  the  Commission  have  arrived  at 
the  conclusion  from  consideration  of  all  the  testimony  touching  the 
question,  that  in  order  to  insure  drainage  it  would  be  necessary,  in 
case  an  under  crossing  should  be  adopted,  for  the  Burlington  tracks 
to  be  raised  at  least  twelve  feet  above  their  present  position  and  the 
tracks  of  the  petitioning  road  to  be  depressed  below  the  surface 
sufficiently  after  providing  for  side  ditches,  ballast,  ties  and  rails,  to 
leave  twenty  feet  in  the  clear  between  the  top  of  rail  and  the  low- 
est point  of  girder. 

In  addition  to  the  above  questions  there  has  been  placed  before  us 
some  general  expert  testimony  as  to  the  merits  and  demerits  of  grade 
crossings,  with  reference  to  the  safety  and  convenience  of  the  travel- 
ing public.  The  weight  of  this  testimony  is  against  the  general  pol- 
icy of  grade  crossings,  a  view  in  which  no  doubt  all  will  concur, 
wherever  conditions  are  at  all  favorable  to  crossings  of  some  other 
kind. 


FINDINGS  AND  CONCLUSIONS. 

This  case  derives  it  chief  importance  from  the  fact  that  it  is  the 
first  one  arising  under  the  act  conferring  jurisdiction  upon  the  Com- 
mission, and  a  conspicious  position  is  therefore  likely  to  be  assigned 
to  this  ruling  as  a  precedent.  We  think  it  proper,  however,  to  ob- 
serve that  a  ruling  of  the  Commission  in  any  individual  case,  arising 
under  this  statute,  can  not  be  taken  as  necessarily  controlling  other 
cases  except  where  in  the  opinion  of  the  Commission,  the  same  con- 
ditions obtain;  and  since  the  conditions  can  rarely  be  the  same  in 
any  two  cases,  it  follows  that  in  the  application  of  this  statute  each 
.crossing  must  be  considered  essentially  by  itself. 

The  act  under  which  this  proceeding  is  had  is  short  and  may  be 
quoted  in  full.  It  is  as  follows: 

(LAWS  OF  1889,  PAGE  223.) 

"An  Act  in  relation  to  the  crossing  of  one   railway   by  another,  and  to  prevent 
danger  to  life  and  property  from  grade  crossings," 

SECTION  1.  Be  it  enacted  by  the  People  of  the  State  of  Illinois,  represented 
in  the  General  Aseembly:  That  hereafter  any  railroad  company  desiring  to 
cross  with  its  tracks  the  main  line  of  another  railroad  company  shall  construct 
the  crossing  at  such  place  and  in  such  manner  as  it  will  not  unnecessarily 
impede  or  endanger  the  travel  or  transportation  upon  the  railway  so  crossed. 
If  in  any  case  objection  is  made  to  the  place  or  mode  of  crossing  proposed  by 
the  Company  desiring  the  same,  either  party  may  apply  to  the  Board  of  Rail- 
way and  Warehouse  Commissioners,  and  it  shall  be  their  duty  to  view  the 
ground,  and  give  all  parties  interested  an  opportunity  to  be  heard.  After 
full  investigation,  and  with  due  regard  to  safety  of  life  and  •  property,  said 
Board  shall  give  a  decision,  prescribing  the  place  where  and  the  manner  in 
which  said  crossing  shall  be  made,  but  in  all  cases  the  compensation  to  be 
paid  for  property  actually  required  for  the  crossing,  and  all  damages  resulting 
therefrom  shall  be  determined  in  the  manner  provided  by  law  in  case  the 
parties  fail  to  agree." 

"SECTION  2.  The  railroad  company  seeking  the  crossing  shall  in  all  cases 
bear  the  entire  expense  of  the  construction  thereof,  including  all  costs  and  in- 
cidental expenses  incurred  in  the  investigation  by  the  Board  of  Railroad  and 
Warehouse  Commissioners." 

"Approved  May  27,  1889." 

From  the  terms  of  the  above  act,  what  if  anything  may  we  deduce 
as  to  the  general  policy  of  the  state  touching  this  question  of  cross- 
ings? Certainly  we  can  not  from  it  infer  that  the  law  makers  in- 
tended to  abolish  grade  crossings.  Had  that  been  their  object  it  was 
competent  for  them  to  have  said  so  in  plain  terms.  This  was  not 
done;  but  a  tribunal  was  instead  designated  to  pass  upon  cases  as  they 
arise.  From  this  we  must  infer  that  the  legislature  believed  there 
would  be  some  cases  where  grade  crossings  would  be  proper  and 
others  where  over  or  under  crossings  would  be  proper.  Each  case 
was  left  by  the  legislature  to  be  decided  upon  its  merits.  This 
Commission  would  have  no  more  right  under  the  statute  to  set  up  a 
general  unvarying  standard  for  all  future  crossings  in  Illinois  than  it 
would  have  to  enact  a  law  which  the  legislators  did  not  think  proper 
to  enact  for  themselves. 


9 

In  the  exercise  of  the  discretion  so  vested  in  the  Commission,  a 
strong,  and  in  many  cases,  controlling  consideration  would  be  the 
natural  configuration  of  the  ground  at  and  near  the  place  of  crossing. 
The  fact  that  the  statute  authorizes  the  Commission  to  pass  not  only 
upon  the  mode  but  also  upon  the  place  of  crossing  seems  to  imply, 
that  it  might  be  proper  in  some  cases  to  vary  the  place  of  crossing 
with  the  view  of  striking  the  road  to  be  crossed  at  a  more  favorable 
point  for  a  non-grade  crossing.  It  will  not  be  questioned  for  a 
moment  that  wherever  the  lay  of  the  ground  is  favorable  to  a  cross- 
ing over  or  under  without  great  additional  expense,  or  the  erection 
of  unsightly  embankments  to  the  great  injury  of  property,  a  non- 
grade  crossing  should  be  under  this  law  preferred.  We  have  seen, 
however,  that  the  topography  of  the  country  does  not  in  the  case 
before  us  favor  a  non-grade  crossing;  and  if  the  locality  were  remote 
from  a  large  center  of  population  and  the  road  proposed  to  be  crossed 
were  not  one  over  which  a  large  traffic  daily  passes,  the  case  would 
be  quite  easy  of  solution.  But  the  contrary  is  the  fact.  The  point 
is  near  a  rapidly  growing  city,  having  already  a  population  of  twelve 
hundred  thousand;  nearly  one  hundred  trains,  passenger  and  freight, 
pass  this  point  daily  and  the  number  is  likely  to  steadily  increase. 
Already  three  tracks  are  in  use  upon  respondent's  road,  and  there 
will  soon  be  need  for  a  fourth.  Several  suburban  stations  of  impor- 
tance lie  beyond  this  crossing.  Under  such  circumstances  are  the 
delay  and  the  danger  from  a  grade  crossing  such  as  to  warrant  the 
Commission  in  ordering  the  under  crossing  proposed? 

The  increased  cost  of  the  proposed  under  crossing,  over  that  of  a 
grade  crossing,  is  not  fixed  by  the  evidence  with  certainty,  there  be- 
ing disagreement  among  the  engineers  of  the  Companies.  This  in- 
creased cost  may  be  safely  placed  within  the  limits  of  from  $125,000 
to  $150,000,  with  a  large  additional  sum  for  increased  cost  of  switch 
connections,  sidings,  turn-outs,"  etc.,  incidental  to  the  non-grading 
status;  and  while  the  Commission  is  exceedingly  loth  to  weigh  even 
the  possibility  of  the  destruction  of  human  life  against  a  mere  matter 
of  dollars,  yet  the  serious  financial  hardship,  under  which  an  order 
for  an  under  crossing  would  lay  petitioner,  can  not  be  ignored.  The 
petitioning  company  obtained  its  charter  at  a  time  when  the  law  per- 
mitted the  road  seeking  a  crossing  such  as  this  to  selact  for  itself  the 
Elace  and  mode  of  crossing.  It  could,  under  the  former  state  of  the 
iw,  have  itself  designated  the  character  and  conditions  of  the  use 
sought  here,  and,  under  the  eminent  domain  act,  could  have  had 
damages  assessed  on  the  basis  of  its  own  proposition,  whether  for  a 
grade  crossing  or  otherwise,  (113  111.,  156).  Having  begun  the  con- 
struction of  its  road,  petitioner  is  met  with  this  new  statute,  and 
asked  to  make  an  increased  outlay  of  over  $100,000  in  this  single 
crossing,  exclusive  of  the  one-third  respondent  offers  to  pay;  and,  if 
compelled  to  do  this  in  the  present  instance,  it  is,  to  say  the  least, 
not  improbable  it- may  be  required  to  do  the  same  with  the  many 
other  lines  of  road  across  which  its  route  is  projected.  To  do  this 
would,  perhaps,  cripple,  if  it  would  not  entirely  forbid  the  enterprise. 


10 

Considering  further  the  subject  of  switch  connections  above  al- 
luded to,  it  should  be  remembered  the  very  object  of  the  petitioning 
company  is  to  form  these  connections  with  the  several  roads,  leading 
from  Chicago,  across  which  its  survey  runs. 

Under  paragraph  6,  Sec.  19,  Act  of  1872,  for  the  Incorporation  of 
Railroad  Companies,  petitioner  has  the  right, 

"To  cross,  intersect,  join  and  unite  its  railways  with  any  other  railway  be- 
fore constructed  at  any  point  in  its  route  and  upon  the  grounds  of  such  other 
Railway  Company  with  the  necessary  turnouts,  sidings,  and  switches  and 
other  conveniences  in  furtherance  of  the  business  of  its  connections;  and 
every  corporation,  whose  railway  is  or  shall  be  hereafter  intersected  by  any 
new  railway  shall  unite  with  the  Corporation  owning  such  new  railway  in 
forming  such  intersections  and  connections  and  grant  the  facilities  aforesaid, 
etc." 

This  section  is  as  much  a  part  of  the  law  of  Illinois  as  that  con- 
ferring the  jurisdiction  now  to  be  exercised.  Under  it,  petitioner 
will  want  switch  connections  with  each  of  the  lines  where  the  mode 
remains  yet  to  be  determined,  nine  or  ten  in  number.  Indeed,  as 
we  have  said,  the  very  object  and  purpose  of  petitioner  is  the  form- 
ing of  these -connections;  and,  in  their  formation,  the  statute  enjoins 
it  as  a  duty  upon  the  roads  crossed  to  "unite"  with  petitioner.  The 
inconvenience,  expense,  and  unsightliness  which  such  switch  connec- 
tions, turnouts,  etc.,  must  occasion  in  each  instance  if  a  non-grade 
basis  is  adopted  on  this  level  plain  will  be  realized  upon  a  moment's 
reflection.  Either  a  separate  track  would  need  to  be  built  on  the 
natural  surface  alongside  the  Terminal  Road's  excavation,  starting 
at  the  head  of  the  cut,  or  else  a  switch-track  would  have  to  be  taken 
out  from  the  cut  a  considerable  distance  back  from  the  crossing  point 
and  gain  the  surface  by  a  sharp  grade;  and  this  would  be  less  than 
half  the  difficulty.  Respondent's  tracks  would  on  the  basis  of  the 
proposition  submitted,  be  about  fifteen  feet  high,  which  elevation 
would  have  to  be  overcome  by  an  embankment  for  switch-track,  de- 
scribing a  curve  Jong  enough  in  distance  to  make  the  ascent  prac- 
ticable for  engines  with  loaded  cars.  Stated  another  way,  whether  a 
non- grade  crossing  be  got  by  depressing  one  road,  or  by  elevating 
the  other,  there  would  be  at  best  a  distance  of  about  twenty-two  feet 
from  rail  to  rail  to  be  overcome  by  a  feasible  track  and  roadbed  for 
switches,  turnouts  and  sidings.  That  it  could  be  done  is  not  disputed; 
but  to  do  it,  would  certainly  require  a  long  track,  a  high  embank- 
ment, a  probable  cut,  and  consequently  a  much  more  extensive  right 
of  way  than  if  a  grade  crossing  were  used.  All  this  would  tend  to 
disfigure  the  neighborhood  of  the  crossings  so  constructed,  inflicting, 
perhaps,  a  damage  upon  property  in  a  growing  village  which  would 
never  be  adequately  measured  by  a  judgment  in  condemnation  or  for 
damages. 

Besides  these  considerations,  the  Commission  is  satisfied  from 
previous  personal  investigation,  as  well  as  from  the  evidence  heard, 
that  inter-locking  devices  which  are  fully  recognized  by  statute  in 
Illinois,  the  most  approved  patterns  of  which  petitioner  stipulates, 
at  its  own  expense,  to  put  in  and  maintain,  giving  all  trains  of  re- 
spondent the  right  of  way,  are  so  efficient,  as  demonstrated  by  actual 


11 

use,  that  they  reduce  both  the  delay  and  the  danger  to  a  very  small 
limit.  With  the  watchman  in  the  signal  tower  instructed  to  give 
the  Burlington  trains  precedence,  it  must  be  very  rare  indeed,  that 
one  of  that  company's  trains  need  come  to  a  full  stop.  So  far  as  its 
freight  trains  are  concerned,  the  delay  would  be  unimportant;  and 
the  mere  matter  of  lowering  the  speed  of  passenger  trains  to  fifteen 
miles  per  hour  to  conform  with  permit,  and  good  usage,  need  not 
occasion,  as  the  Commission  believe,  a  delay  to  any  given  train  ex- 
ceeding two  minutes,  and  with  a  light  train  even  Isss,  which  is  not  a 
very  great  matter. 

If  the  danger  and  delay  to  result  from  a  grade  crossing  at  this 
point  are  regarded  as  so  important,  it  would  seem  a  wide  field  is  open 
for  the  management  of  the  respondent  Company  to  reduce  both  delay 
and  danger  at  some  of  its  present  grade  crossings  where  no  inter- 
locking devices  are  in  use;  and  the  same  remark  well  applies  to  other 
managements  of  old  companies,  members  of  which  have  testified  be- 
fore us  in  this  case  urging  no  more  grade  crossings.  Certain  it  is, 
that  when  no  inter-locking  devices  had  been  recognized  by  law,  or 
were  in  use,  and  both  danger  and  delay  were  confessedly  much  greater, 
it  was  the  practice  of  nearly  all  the  companies  in  this  State  to  build 
crossings  on  grade. 

The  greater  solicitude,  arising  now  when  the  occasion  is  less,  might 
suggest  to  some  (though  the  Commission  certainly  does  not  take  that 
view),  that  these  old  established  lines,  now  that  they  no  longer  have 
occasion  to  build  extensions,  are  not  averse  to  imposing  upon  new 
candidates  conditions  which  rest  largely  upon  specious  but  unprac- 
ticed  precepts. 

Nothing  here  said  is,  however,  to  be  understood  as  committing  us 
to  any  general  policy  favoring  grade  crossings,  as  such.  On  the  con- 
trary, wherever  circumstances  favor,  or  even  permit,  we  should  much 
prefer  to  separate  the  tracks  of  crossing  roads.  We  have  hesitated 
long  before  seeing  our  way  to  order  a  grade  crossing  even  in  the 
present  case.  If  respondent's  tracks  were  already  elevated  to  a  point 
which  would  render  an  under  crossing  with  good  drainage  feasible, 
we  should  perhaps  be  inclined  to  put  the  petitioning  road  under. 
With  the  circumstances  and  conditions  as  they  now  in  fact  confront 
us,  we  are  unable  to  do  so. 


DECISION. 

It  is  therefore  decided  and  ordered  that  petitioner  have  leave  to 
cross  with  its  tracks,  the  tracks  of  respondent  at  the  point  designated 
in  its  petition  on  grade,  and  level  with  the  tracks  of  respondent;  but 
only  upon  condition  that  before  its  road  is  used  at  said  crossing  point 
for  the  passage  of  trains  it  will  at  its  own  expense  set  up  and  fully 
equip  ready  for  use  at  said  crossing,  the  latest,  best  and  safest  inter- 
locking appliances,  signals  and  devices,  together  with  electric  annun- 
ciators to  announce  the  approach  of  trains,  and  also  upon  condition 


12 

that  before  proceeding  to  construct  such  crossing,  petitioner  give 
bond  in  the  penal  sum  of  $20,000,  with  securities  to  be  approved  by 
respondent,  or  the  Commission,  conditioned,  that  it  will  perpetually 
maintain  such  interlocking  system  in  good  order  and  condition,  and 
pay  all  salaries  of  men  needed  to  efficiently  maintain  and  operate  the 
same. 

Inasmuch  as  no  general  rules  of  practice  for  proceedings  under 
this  act  have  been  heretofore  promulgated,  it  is  ordered  that  ten  days 
be  allowed  from  the  date  of  filing  this  opinion  in  which  either  party 
may  file  petition  for  re-hearing,  first  giving  notice  to  the  opposite 
party,  in  analogy  with  the  rule  of  the  Supreme  Court  of  Illinois 
touching  re-hearings;  and  the  operation  of  the  above  decision  and 
order  will  be  suspended  until  any  petition  which  may  be  so  filed  is 
heard  and  disposed  of. 


APPLICATION 


New  or  Amended  Rules 


GOVERNING  THE 


INSPECTION  OF  GRAIN 


OPINION  AND  RULING  OF  THE  COMMISSION 


IN  ANSWER  TO  COMMUNICATION  OF 


P.  BIRD  PRICE,  CHIEF  INSPECTOR  OF  GRAIN. 


Chicago,  Illinois. 


15 


COMMUNICATION  OF  P.  BIRD  PRICE. 


OFFICE  OF  CHIEF  INSPECTOR  OF  GRAIN, 

Chicago,  III,  December  28,  1889. 

Hon.  John  R,   Wheeler,  Chairman  Railroad  and  Warehouse  Com- 
mission, Springfield,  Illinois. 

DEAR  SIR:  At  a  meeting  of  your  Honorable  Board,  held  in  Chicago, 
September  12,  1889,  an  amendment  to  Rule  Two  was  made,  creating 
the  grades  of  Nos.  1,  2  and  3,  White  Spring  Wheat,  which  amend- 
ment, after  the  statutory  publication  of  twenty  days,  went  into  effect 
October  7,  1889. 

By  the  terms  of  this  amendment,  all  Spring  Wheat  containing  5 
per  cent  or  over  of  White  Wheat,  is  required  to  be  graded  as  "White 
Spring  Wheat." 

At  the  time  this  amended  rule  went  into  effect,  there  was  a  consid- 
erable quantity  of  wheat  in  store  in  the  elevators  under  the  jurisdic- 
tion of  this  department,  which,  under  the  original  rule,  had  been 
graded  No.  2  Spring;  but  which,  under  the  rule  as  amended,  would 
be  graded  No.  2  White  Spring. 

It  has  been  held  by  former  Commissions  and  by  this  department, 
as  I  belive,  from  its  creation,  that  the  authorities  were  precluded  by 
law  from  changing  the  grade  of  grain  while  in  store,  and  that,  there- 
fore, no  new  rule  could  be  made  to  apply  to  grain  in  store  at  the  time 
of  its  adoption. 

In  pursuance  to  this  fundamental  idea  it  has  been  the  custom  to 
apply  to  all  grain  on  coming  out  of  an  elevator  the  rule  that  was  in 
force  when  it  was  received,  but,  such  grain  having  been  once  delivered 
from  the  house  into  possession  of  its  rightful  owner,  under  the  origi- 
nal rule,  and  his  rights  thereby  saved  as  far  as  possible,  it  has  been 
held  that  any  further  inspection  of  the  grain  became  a  new  transac- 
tion, to  which  any  new  or  amended  rule  then  in  force  would  apply, 
exactly  as  if  the  grain  in  question  had  arrived  from  a  point  outside 
of  the  jurisdiction  of  the  department. 

In  dealing  with  the  questions  that  have  arisen  under  this  amend- 
ment of  Rule  Two, ,[  have  adhered  to  the  principle  above  outlined; 
and  the  house  inspectors  have  in  every  case,  of  their  own  motion  and 
without  asking  or  receiving  instructions,  applied  the  rule  as  it  stood 
before  amendment  to  all  wheat  that  was  in  store  October  7th,  show- 


16 

ing  conclusively  that  the  custom  of  applying  to  grain  coming  out  of 
store  the  rule  as  it  stood  when  the  grain  was  received,  was  too  well  es- 
tablished to  admit  a  question  of  their  duty  in  the  premises. 

I  can  see  no  way  to  make  any  change  in  an  established  rule  with- 
out affecting  in  some  way  or  other  the  value  of  the  property  in  store, 
and  equity  would  seem  to  require  that  that  course  should  be  pursued 
which  will  reduce  any  damage  of  this  kind  to  the  minimum. 

The  State  Legislature  evidently  had  this  in  mind  when  it  required 
a  public  notice  of  twenty  days  to  be  given  before  any  new  rule  or 
amendment  could  legally  go  into  effect. 

To  apply  a  new  rule  at  once  might  cause  very  serious  damage  by 
reason  of  existing  contracts  or  already  perfected  arrangements  for 
handling,  and  to  apply  it  even  after  20  days'  notice  to  grain  already 
in  store,  could  hardly  fail,  in  most  cases,  to  inflict  a  hardship  upon 
the  owners. 

Conditions  of  the  market  not  infrequently  exist  under  which  it 
would  be  impossible  to  move  the  grain  from  store,  within  twenty  days, 
without  a  loss  more  serious  than  that  occasioned  by  a  change  of 
grade. 

On  the  other  hand  I  can  see  no  way  in  which  injury  can  be 
worked  by  delivering  to  the  holder  of  a  warehouse  receipt  the  grain  it 
calls  for  under  the  rule  in  force  when  it  was  issued. 

He  has  then  received  his  grain  just  as  he  put  it  into  store,  with  the 
same  grade,  and  stands  in  the  same  position  he  would  if  it  had  never 
been  in  store. 

If  the  receipt  has  in  the  meantime  changed  hands,  the  purchaser 
has  at  least  been  put  upon  the  inquiry  by  the  statutory  notice  and 
the  public  comment  upon  every  such  change,  end  has  an  opportunity 
to  protect  himself  by  examining  into  the  quality  of  the  grain  to  be 
delivered  him,  or  abstaining  from  its  purchase  altogether. 

No  such  opportunity  would  be  given  to  the  holders  of  receipts  if  the 
right  of  the  Commission,  under  the  law,  to  change  the  grade  of  grain 
while  in  store  should  be  established. 

It  might  be  a  physical  impossibility  for  him  to  move  his  grain, 
while  to  let  it  remain  in  store  a  day  after  the  expiration  of  the  statu- 
tory notice,  would  entail  a  serious  decline  in  the  value  of  his  property. 

As  a  considerable  amount  of  grain  affected  by  this  rule  was  in  store 
at  the  time  the  amendment  went  into  effect,  and  as  a  large  .part  of  it 
is  still  in  store,  the  questions  arising  under  the  amendment  will  be 
constantly  arising,  and  that  I  may  have  some  rule  by  which  to  act 
beyond  that  of  precedent  and  long  established  custom,  I  respectfully 
ask  a  ruling  by  your  Honorable  Board  upon  the  following  points: 

1.  When  grain  has  been  inspected  out  of  a  warehouse  of  Class  A, 
and  has  been  delivered  into  the  absolute  possession  and  control  of 
the  owner,  has  this  department  any  further  relation  to  such  grain  or 
any  further  duty  concerning  it? 


17 

2.  When  grain  is  presented  for  inspection  with  a  view  to  storage 
in  any  warehouse  of  Class  A,  is  it  incumbent  upon  this  department 
to  inquire  as  to  the  origin  of  such  grain,  or  to  ascertain  whether  it 
has  previously  been  inspected  by  its  employe's  or  not? 

3.  When  grain  that  is  presented  for  inspection   with  a  view  to 
storage  in  any  warehouse  of  Class  A,  has  been  previously  inspected 
from  store  and  delivered  into  the  absolute  possession  and  control  of 
its  owner,  does  or  does  not  the  duty  of  this  department  in  relation  to 
it  differ  from  its  duty  in  relation  to  grain  arriving  from  points  out- 
side of  its  jurisdiction? 

4.  When  grain  is  presented  for  inspection  with  a  view  to  storage 
in  any  warehouse  of  Class  A,  should  the  fact  (if  such  should  be  the 
case)  that  such  grain  has  been  previously  inspected  out  of  the  same 
or  any  other  such  warehouse  under  the  provisions  of  a  rule  no  longer 
in  force,  except  as  to  grain  going  out  of  store,  affect  the  action  of 
this  department? 

5.  In  case  of  the  amendment  of  an  established  rule  of  inspection, 
should  grain  already  in  store  be  inspected  out  under  the  rule  as  it 
stood  at  the  time  such  grain  was  received,  or  under  the  amendment 
in  force  at  the  time  of  its  delivery? 

In  view  of  the  importance  of  the  interests  involved,  and  of  the  fact 
that  the  owners  of  some  of  the  grain  affected  by  the  amendment 
above  mentioned  are  desirous  of  transferring  their  property  from  one 
warehouse  to  another  within  the  jurisdiction  of  the  department,  I 
respectfully  ask  that  the  ruling  of  your  Honorable  Board  upon  the 
above  points  be  made  as  promptly  as  circumstances  will  admit. 

Very  respectfully, 

P.  BIRD  PRICE, 

Chief  Inspector, 

OPINION  AND  RULING  OP  THE  COMMISSION. 

September  12,  1889,  the  Commission  amended  the  Spring  Wheat 
Rule  ''No.  2,"  by  creating  separate  grades  for  wheat  containing  5  per 
cent  or  more  of  the  white  variety.  White  Spring  had  previously 
been  graded  with  other  wheat,  without  any  distinction  based  on 
color,  and  it  was  all  denominated  "Spring  Wheat."  By  the  amend- 
ment so  adopted,  if  5  per  cent  or  more  of  wheat  is  white,  it  takes  the 
same  grade  number  it  would  have  taken  before  the  amendment,  but 
the  word  "white"  is  inserted,  making  it  "White  Spring  Wheat"  in- 
stead of  "Spring  Wheat.'' 

The  statutory  notice  of  twenty  days  was  given,  and  the  amended 
rule  went  into  force  October  7,  1889. 

The  change  was  made  upon  urgent  and  convincing  representations 
made  to  the  Commission,  and  its  policy  and  justice  is  not  questioned 
in  any  quarter.     Its  effect  is,  that  White  Wheat  is  now  called  in  the 
market  by  its  right  name. 
—2  O 


18 

It  appears  from  the  Chief  Inspector's  communication  that  when 
this  amendment  went  into  effect,  there  was  a  quantity  of  wheat  in 
store  in  the  elevators  which,  under  the  original  rule,  had  been  graded 
"No.  2  Spring,"  but  which,  under  the  rule  as  amended,  would  be 
graded  ''No.  2  White  Spring."  The  questions  presented  concern 
entirely  the  application  of  this  amended  rule  to  the  wheat  so  in  store 
when  it  went  into  effect.  Shall  the  rule  as  amended  be  applied  to 
this  No.  2  Spring  Wheat  which  was  in  store  in  the  Chicago  eleva- 
tors, and  under  the  jurisdiction  of  this  department  at  the  time  the 
rule  took  effect;  and  if  not  applied  to  wheat  already  in  store  when 
inspected  out,  then  shall  the  new  rule  be  applied  to  such  wheat  in 
case  of  application  being  made  for  re- inspection  of  it  into  another 
elevator?  These  are  the  principal  questions  raised  by  the  inspector's 
communication. 

We  understand  our  predecessors  on  the  Commission  have  uniformly 
held  that  changes  or  amendments  of  the  grading  rules  were  not 
properly  or  legally  applicable  to  grain  in  store  when  the  same  took 
effect,  and  that  such  grain  should  be  inspected  out  under  the  rule  in 
force  when  it  went  in;  and  the  custom  and  practice  of  the  depart- 
ment have,  we  learn,  always  been  in  accordance  with  this  holding. 
It  has  further  been  the  practice  of  the  department  to  apply  to  all 
grain  seeking  admission  into  elevators  the  rule  in  force  at  the  time 
application  therefor  is  made. 

After  full  consideration  of  the  interests  involved,  we  see  no  reason 
to  depart  from  this  uniform  ruling  of  our  predecessors  and  the  im- 
memorial practice  of  the  department. 

Grain  which  is  in  store  in  warehouses  of  Class  A,  and  held  under 
warehouse  receipts  issued  in  pursuance  of  the  statute,  may  be  said  to 
be  strictly  under  the  jurisdiction  of  the  Commission.  We  do  not 
think  there  is  any  legal  warrant  for  changing  the  grade  of  such  wheat 
while  so  held.  The  No.  2  wheat  which  is  involved  in  the  present 
case,  has  a  fixed  value  in  the  markets  of  the  world,  depending  in 
some  part  at  least  upon  the  certificate  of  its  grading,  that  giving  it  a 
certain  and  definite  character  as  a  commodity  of  commerce.  To  hold 
that  the  Commission  could  change  the  grade  and  therefore  the  value 
of  this  wheat  while  in  the  warehouse,  and  held  under  receipt,  would 
be  to  assume  an  arbitrary  power  which  we  believe  the  law-makers 
never  intended  to  confer  upon  the  Commission,  and  it  was  not  the 
purpose  of  the  Commission  in  amending  the  rule  to  give  to  their 
action  any  such  application. 

It  must  be  remembered  that  warehousemen  of  Class  A  in  Illinois 
perform  a  public  calling,  for  the  performance  of  which  they  are  re- 
quired to  procure  a  license,  which  is  revocable  by  the  court  upon  any 
failure  on  their  part  to  comply  strictly  with  the  law.  Such  ware- 
housemen give  bond  conditioned  for  a  "full  and  unreserved  compli- 
ance with  the  laws,"  of  this  State,  in  relation  to  warehouses. 

A  part  of  that  law  is  in  these  words:  "It  shall  be  the  duty  of  every 
warehouseman  of  Class  A  to  receive  for  storage  any  grain  that  may 
be  tendered  to  him  in  the  usual  manner  in  which  warehouses  are  ac- 
customed to  receive  the  same  in  the  ordinary  and  usual  course  of 
business,  etc." 


19 

It  is  further  provided  that  "no  warehouseman  in  this  State  shall 
insert  in  any  receipt  issued  by  him  any  language  in  any  wise  limit- 
ing or  modifying  his  liabilities  or  responsibility  as  imposed  by  the 
laws  of  this  State." 

It  is  further  provided  by  the  statute  that  on  the  return  of  any 
warehouse  receipt  issued  by  a  warehouseman,  and  the  tender  of  all 
charges,  the  property  held  under  the  receipt  shall  be  "immediately 
deliverable  to  the  holder  of  such  receipt;"  and  that  "unless  the  prop- 
erty represented  by  such  receipt  shall  be  delivered  within  two  busi- 
ness hours  after  such  demand  shall  have  been  made,  the  warehouse- 
man in  default  shall  be  liable  for  damages,  in  the  sum  of  one  cent 
per  bushel,  and  also  a  further  damage  of  one  cent  per  bushel  for  each 
day  of  refusal,  etc." 

In  determining  what  effect  shall  be  given  to  new  or  amended  rules, 
all  the  above  provisions  of  the  statute  are  to  be  considered.  Were  it 
held  that  a  change  of  rule  applies  to  wheat  in  store  when  it  takes 
effect,  the  obvious  result  would  be  that  a  warehouseman  could  be 
compelled  by  law  to  take  grain  into  store  the  day  before  the  change 
takes  effect  in  the  rule  which  he  could  not  deliver  back  on  the  next 
day  upon  the  same  receipt  issued  therefor.  The  duty  to  take  the 
grain  and  store  it  is  mandatory.  Before  the  changed  rule  takes  effect 
the  grain  must  of  course  be  graded  by  the  old  rule.  The  warehouse- 
man could  not,  as  we  have  seen,  insert  in  the  receipt  "any  language 
in  any  wise  limiting  or  modifying  his  liabilities  or  responsibility"  as 
provided  by  the  statute.  In  the  present  case,  therefore,  it  was  the 
legal  duty  of  every  warehouseman  to  receive  this  wheat  up  to  Oc- 
tober 7,  1889,  when  the  rule  went  into  effect,  and  to  give  receipts 
therefor  according  to  the  old  grading,  that  is  to  say,  receipts  simply 
for  "No.  2  Spring  Wheat,"  even  though  the  grain  so  offered  were 
White  Wheat,  and  would  be  graded  as  "No.  2  White,"  the  moment 
the  new  rule  took  effect.  The  warehouseman  would  then  be  under 
legal  obligations  to  take  wheat  as  "No.  2  Spring  Wheat,"  and  deliver 
it  as  "No.  2  White,"  and  all  by  the  arbitrary  operation  of  a  rule  of 
this  Commission.  It  seems  to  the  Commission  this  would  be  an  ex- 
ercise of  power  not  warranted  by  law,  and  as  before  observed,  the 
Commission  did  not  mean  to  exercise  any  such  power,  but  had  in 
view  when  the  amendment  was  adopted  the  uniform  ruling  and  prac- 
tice of  the  department. 

If  a  change  of  rule  were  held  to  apply  to  grain  already  in  store,  a 
case  might  readily  be  supposed  where  a  warehouseman  could  not 
possibly  in  his  deliveries  comply  with  the  law.  Suppose,  for  instance, 
a  warehouseman  should  have  on  hand,  on  the  day  a  new  rule  takes 
effect,  only  grain  of  a  variety  which  would  fall  under  the  new  grade 
created  by  the  new  rule.  His  receipts  outstanding,  having  been 
issued  under  the  old  rule,  have  of  course  given  this  wheat  on  hand 
the  grade  and  denomination  fixed  by  the  old  rale.  If,  therefore,  his 
patrons  should  apply  on  the  next  day  for  their  wheat,  how  could  he 
possibly  give  it  to  them  if  the  new  rule  is  applied?  Such  a  con- 
struction would  here  meet  with  a  physical  impossibility,  and  the 
case,  too,  is  one  which  might  occur  in  practice.  If  we  suppose  the 
amount  on  hand  falling  under  the  new  grade  to  be  some  portion  less 


20 

than  the  whole,  viz.:  one-half  or  one-third,  there  would  still  be  the 
same  difficulty,  unless  by  mixing  his  wheat  the  warehouseman  could 
in  some  way  make  the  whole  of  it  pass  as  of  the  original  grade.  In  the 
present  case  5  per  cent  of  White  Wheat  serves  to  make  the  wheat  grade 
"White;"  and  of  course  if  the  amount  of  White  Wheat  on  hand  were 
less  than  5  per  cent  of  the  total  amount,  the  mixing  of  the  two  kinds 
together  thoroughly  would  enable  the  warehouseman  to  pass  it  all 
out  as  "No.  2  Spring."  Otherwise  he  would  have  to  hold  his  White 
Wheat  until  such  time  as  he  could  make  the  necessary  dilution,  or 
else  lose  the  difference  in  the  value  of  the  two  grades. 

We  are  not  saying  that  the  hardships  here  suggested  would  all 
actually  occur  in  the  present  case,  in  the  event  of  holding  the  rule  to 
apply  to  wheat  in  store,  but  are  simply  supposing  cases  that  might 
occur  as  illustrating  the  general  principles  that  should  be  applied  to 
cases  of  this  kind.  The  question  is  one  of  law,  and  goes  largely  to  the 
powers  derived  by  the  Commission  from  the  statute,  in  the  deter- 
mination of  which  the  whole  statute  should  be  considered. 

In  regard  to  in-inspection  the  case  is  different;  and  the  fact  that 
wheat  presented  for  inspection  into  an  elevator  has  previously  been 
stored  in  a  warehouse  of  Class  A  and  under  the  jurisdiction  of  the 
Commission,  does  not,  in  the  opinion  of  the  Commission,  present  a 
ground  for  continuing  to  inspect  it  by  the  old  rule.  The  new  rule 
must  be  applied  somewhere,  and  we  know  of  no  better  place  to  apply 
it  than  at  the  door  of  the  elevator,  and  to  wheat  going  into  store.  If 
wheat  has  once  passed  out  from  the  elevator,  and  the  warehouse  re- 
ceipt has  been  taken  up  an  canceled,  it  is  then  out  from  under  the 
jurisdiction  of  this  Commission.  If  it  knocks  at  the  door  of  another 
elevator,  or  even  the  same  elevator  for  re-admission,  it  must  be 
treated  as  any  other  grain  arriving  from  any  other  point. 

Persons  placing  wheat  in  store  since  the  amendment  went  into 
effect,  have  had  power  to  protect  themselves,  in  some  measure  at 
least,  either  by  selecting  elevators  in  which  there  is  no  White  Wheat, 
of  which  there  are  several,  or  by  causing  their  wheat  to  be  stored  in 
a  "separate  bin"  as  provided  by  the  statute,  thus  insuring  the  re- 
delivery  to  them  of  the  identical  wheat  stored.  The  warehouseman, 
we  have  seen,  has  no  such  power  to  protect  himself  against  the  hard- 
ships which  an  application  of  the  amended  rule  to  wheat  in  store 
might  impose  upon  him. 

It  is  perhaps  difficult  to  make  any  change  of  grade  which  would 
not  work  an  injury  to  somebody.  The  statute  requiring  changes  of 
rule  to  be  published  twenty  days  before  taking  effect,  was  no  doubt 
designed,  by  warning  persons  interested,  to  reduce  the  damages  to  a 
small  limit  by  enabling  all  persons  to  get  ready  for  the  change.  The 
damage  that  must  necessarily  result,  not  withstanding  such  notice, 
ought  to  fall  (since  it  must  fall  somewhere)  upon  him  who  could  by 
diligence  best  have  protected  himself. 

It  is  therefore,  in  reply  to  the  questions  of  the  Chief  Inspector, 
ruled  by  the  Commission — 


21 

1.  That  when  grain  has  been  inspected  out  of  warehouses  of  Class 
A  and  has  been  delivered  into  the  absolute  possession  and  control  of 
the  owner,  the  inspection  department  has  no  further  relation  to  such 
grain,  and  no  further  duty  concerning  it. 

2.  When  grain  is  presented  for  inspection  with  a  view  to  storage 
in  warehouses  of  Class  A,  it  is  not  incumbent  upon  the  department 
to  inquire  as  to  the  origin  of  such  grain,  or  to  ascertain  whether  it 
has  previously  been  inspected  by  the  employe's  of  the  department  or 
not. 

3.  When  grain   that   is  presented  for  inspection  with  a  view   to 
storage  in  a  warehouse  of  Class  A  has  been  previously  inspected  from 
store  and  delivered  into  the  absolute  possession  and  control  of  its 
owner,  the  duty  of  the  inspection   department   in   relation   to   such 
grain   does   not   differ   from  its  duty  in  relation  -to  grain  arriving 
from  other  points  outside  of  its  jurisdiction. 

4.  When  grain  is  presented  for  inspection  with  a  view  to  storage 
in  a  warehouse  of  Class  A,  the  fact  that   such   grain   has  been   pre- 
viously inspected  out  of  the  same  or  some  other  warehouse  under  the 
provisions  of  a  rule  no  longer  in  force,  should  not,  except  as  to  grain 
going  out  of  store,  affect  the  action  of  the  inspection  department. 

5.  In  case  of  the  amendment  of  an  established  rule  of  inspection, 
grain  already  in  store  when  the  rule  takes  effect,  should,  in  the  opin- 
ion of  the  Commission,  be  inspected  out  under  the  rule  as  it  stood  at 
the  time  such  grain  was  received. 

SPRINGFIELD,  ILLINOIS,  January  4,  1890. 

Subsequently,  on  the  21st  day  of  May,  1890,  upon  further  discus- 
sion of  the  question  of  application  of  new  or  amended  rules  of  in- 
spection, the  Commission  unanimously  adopted  the  following  general 
rule  to  apply  to  all  such  cases: 

All  grain  in  store  of  any  warehouse  of  Class  A,  at  the  time  any 
amendment  to  the  established  rules  of  inspection,  (affecting  such 
grain)  may  hereafter  go  into  effect,  shall  be  inspected  out,  (in  satis- 
faction of  warehouse  receipts  dated  prior  to  that  time  only)  in  ac- 
cordance with  the  rules  as  they  stood  prior  to  such  amendment. 


BEFORE  THE 


STATE  OF  ILLINOIS. 


COMPLAINT. 


CITIZENS   OF   LANSING,  ILLINOIS. 
COMPLAINANT. 


VS. 


THE  CHICAGO,  ST.  Louis  &  PITTSBURG  R.  R.  Co. 

RESPONDENT. 


RESTORATION  OF  STATION  BUILDING  AND  PRIVILEGES. 


Complaint  Filed  December  12,  1889, — Hearing  January  '3,  1890. — 
Decision  Rendered  January  24,  1890. 


APPEARANCES. 

For  Complainants,  J.  A.  CRAWLEY. 
For  Respondent,  CHAS.  WATTS. 


25 


STATEMENT  OF  FACTS, 


The  petition  in  this  case  prays  that  action  may  be  taken  by  the 
Commission  to  compel  the  restoration  of  the  station  privileges  and 
building  at  the  village  of  Lansing,  on  what  is  known  as  the  "Pan- 
handle" road.  It  appears  that  in  1864  the  Chicago  &  Great  Eastern 
Railroad  Company  built  the  line  of  road  now  owned  by  respondent 
upon  which  the  village  of  Lansing  is  situated,  in  the  township  of 
Thornton,  Cook  County,  twenty-seven  miles  from  the  Chicago  station, 
and  near  the  Indiana  line. 

There  is  some  conflict  in  the  evidence  as  to  the  extent  of  the  pop- 
ulation of  Lansing.  Petitioners  claim  it  numbers  over  three  hundred, 
while  respondent  places  it  at  two  hundred  and  twenty-five.  Each 
estimate  is  claimed  to  be  based  upon  actual  count.  We  do  not,  how- 
ever, deem  this  question  a  vital  one  in  this  case,  or  one  which  it  is 
necessary  to  settle  to  the  nicety  of  a  unit.  Whether  the  population 
of  Lansing  be  three  hundred,  or  only  two  hundred  and  twenty-five, 
the  community  has  rights  which  we  will  endeavor  to  determine  as 
best  we  can  from  the  evidence  before  us. 

Lansing  is  not  an  incorporated  town  or  village.  Its  lands  are,  how- 
ever, subdivided,  platted  and  sold  by  lot  numbers;  and  the  place  has 
all  the  requisites  of  a  legal  municipality  except  the  formal  incorpora- 
tion. 

When  this  road  was  built  in  1864  or  5,  a  station  building  was 
erected  and  full  station  privileges  established  at  the  place  called 
Lansing,  and  a  regular  station  agent  has  been  located  and  main- 
tained there  all  the  time  until  the  fall  of  1889,  when  such  agent  was 
removed;  and  a  little  later  the  station  building  was,  on  a  Sunday, 
removed  by  the  Company  from  Lansing. 

There  is  evidence  before  the  Commission  showing  the  extent  of 
the  business  transacted  at  Lansing.  Quite  a  large  trade  is  done  there 
in  hay  and  coal,  these  being  the  most  important  items.  The  other 
business  of  the  place  is  such  as  is  ordinarily  done  in  a  community  or 
village  of  similar  size  located  near  a  great  city,  as  Lansing  is. 

It  appears  from  the  evidence  that  prior  to  the  building  of  the  road 
a  contract  was  entered  into  between  the  Company  building  it  and 
the  proprietors  over  whose  land  the  construction  was  proposed, 
whereby  the  right  of  way  was  granted  to  the  Company  upon  certain 
considerations,  among  which  were  the  establishment  of  certain  stations 
and  the  running  of  certain  trains  between  the  Chicago  station  and 


26 

the  Indiana  State  line.  As  the  evidence  does  not  advise  us  as  to  the 
manner  in  which  the  respondent  Company  succeeded  to  the  road 
and  franchise  of  the  original  Company,  we  are  unable  to  say  that 
this  contract  is  material  in  a  legal  point  of  view  in  determining  the 
rights  of  petitioners.  If  respondent  came  in  by  purchase  at  a  judicial 
sale  it  would  seem,  under  the  ruling  of  the  Supreme  Court  in  the  L. 
&  N.  case,  120  111.  48,  that  the  obligations  of  the  contract  would  not 
attach  to  respondent  as  such  purchaser.  This  question  will,  however, 
be  for  the  courts  to  decide  in  case  this  controversy  shall  be  finally 
settled  by  suit. 

It  further  appears  from  the  evidence  that  a  subscription  was  circu- 
lated on  which  money  was  raised  from  the  residents  of  the  vicinity 
to  build  the  first  station  house  at  Lansing,  $1,200  being  subscribed 
for  that  purpose.  The  particular  station  house  so  built  had  been  re- 
placed and  was  not  the  one  removed  by  respondent  from  Lansing  in 
November. 

Although  we  do  not  base  our  opinion  or  action  in  this  case  upon 
the  contract  or  the  subscription  mentioned  above,  yet  they  are  circum- 
stances of  some  moral  value  in  arriving  at  petitioners'  rights,  and 
strongly  persuasive  to  a  full  enforcement  of  those  rights  when  ascer- 
tained. 

A  good  deal  was  said  in  the  course  of  the  hearing  about  the  mo- 
tives which  induced  the  superintendent  of  respondent  to  take  away 
these  station  privileges.  With  this  question  we  have  nothing  to  do. 
It  is  the  substantial  rights  of  petitioners  and  of  respondent  which 
are  before  us  for  consideration.  If  the  community  known  as  Lansing 
is  not  legally  entitled  to  depot  privileges,  then  it  could  not  get  them, 
whatever  secret  or  unjustifiable  motive  may  have  entered  into  the 
withholding  of  them.  On  the  other  hand,  if  this  community  is 
legally  entitled  to  depot  privileges,  then  it  should  have  them,  how- 
ever sincerely,  or  in  whatever  good  faith,  these  privileges  may  have 
been  withheld. 

The  sale  of  tickets  for  Lansing  was,  after  the  removal  of  the  sta- 
tion building,  discontinued  by  the  Company;  but  on  this  point  we 
accept  the  statement  of  the  superintendent  that  the  withdrawing  of 
these  tickets  was  a  mere  error,  not  intended  by  the  management, 
which  has  since  been  corrected,  and  the  tickets  restored. 

Among  the  reasons  assigned  by  respondent  for  removing  this  sta- 
tion and  withdrawing  the  agent  are,  that  it  became  necessary  to 
maintain  an  agent  at  South  Chicago  Junction  on  this  line  of  road, 
something  over  a  mile  from  Lansing,  and  that  it  will  not  pay  the 
Company  to  maintain  another  depot  and  agency  so  near  by,  at  the 
village  of  Lansing.  It  is  also  said  that  the  privileges  now  accorded 
to  the  community  known  as  Lansing  are  fully  equal  to  those  given 
to  other  villages  or  communities  of  like  grade  or  importance  upon 
the  line  of  respondent's  road.  It  is  also  claimed  by  respondent  that 
the  withdrawal  of  the  agent  does  not  subject  the  people  of  Lansing 
to  any  serious  inconvenience,  inasmuch  as  he  continues  to  reside  at 
Lansing  and  orders  for  cars,  etc.,  can  be  giyen  to  him  mornings  and 


27 

evenings  when  he  is  at  home.  The  fact  of  the  present  agent's  resi- 
dence at  Lansing  is,  however,  only  a  coincidence.  No  guarantee  is 
given  for  its  continuance.  The  next  agent  may  reside  in  Chicago, 
instead  of  Lansing,  or  this  one  may  at  any  time  remove  there,  for 
aught  that  appears. 

Nor  is  it  established  to  our  satisfaction  that  the  business  of  Lan- 
sing may  be  as  conveniently  transacted  with  the  present  facilities  as 
with  those  formerly  furnished,  as  respondent  insists  is  the  case.  In- 
deed, it  seems  little  less  than  absurd  to  insist  upon  such  a  propo- 
sition. With  no  station  building  where  freight  can  be  cared  for 
between  the  time  of  its  arrival  and  delivery,  or  between  the  time  of 
its  delivery  at  the  track  and  the  arrival  of  the  train  which  is  to  carry 
it,  and  with  no  agent  present  to  receive  and  bill  freight  or  to  sell 
tickets,  and  no  place  where  passengers  may  find  shelter  while  await- 
ing a  train,  no  telegraph  facilities  by  which  cars  may  be  ordered  for 
shippers,  it  seems  useless  to  contend  that  the  people  of  Lansing  are 
not  subjected  to  a  serious  inconvenience  over  what  many  of  them 
had  a  right  to  expect  when  their  lot  was  cast  in  that  community.  A 
shipper  wishing  to  order  cars  must  go  to  a  distant  telegraph  station 
on  the  line,  unless  he  chooses  to  await  the  slow  processes  of  the  mail. 
The  fact  that  he  may  at  present  see  the  agent  in  the  evening  or  the 
morning  while  in  Lansing  is  simply  his  good  fortune  and  is  not  a 
legal  right  he  could  ever  insist  upon  in  the  courts,  if  he  should  here- 
after be  deprived  of  it.  The  resident  of  Lansing  or  of  Thornton 
•  township,  who  wishes  to  ship  less  than  a  car  load  of  freight  from 
this  point,  has  no  resource  but  to  go  himself  to  the  track  where  only 
a  very  indifferent  "cinder  platform"  has  been  provided,  and  there 
await  with  his  goods  the  coming  of  a  freight  train  which  may  be 
hours  behind  time.  He  can  not  bill  his  goods  and  go  home  leaving 
them  under  shelter  at  the  risk  of  the  Company.  He  must  personally 
see  the  conductor  of  the  train,  and  depend  upon  the  goods  being 
billed  from  the  next  station.  The  receiver  of  freight  is  subjected  to 
a  like  inconvenience.  His  goods  are  thrown  from  the  train  upon  the 
ground,  where  he  must  find  them  and  care  for  them,  or  leave  them 
to  be  damaged  by  the  weather. 

FINDINGS   AND   CONCLUSIONS. 

None  of  the  reasons  assigned  for  withdrawing  these  station  priv- 
ileges are,  in  the  view  of  the  Commission,  sound,  or  sufficient  in  law. 
It  is  not  conceivable  that  in  the  quarter  of  a  century  during  which 
station  privileges  have  been  maintained  at  Lansing  that  the  busi- 
ness and  property  interests  of  the  neighborhood  hare  not  conformed 
themselves  largely  to  the  circumstances  of  the  existence  of  such 
depot  privileges.  These  interests  were  no  doubt  built  up  largely 
upon  the  faith  that  such  privileges  would  be  continued,  and  values 
have  adjusted  themselves  on  that  basis.  The  fact  that  the  business 
is  not  extensive,  and  that  the  town  is  not  a  large  one,  does  not  affect 
the  question,  so  long,  at  any  rate,  as  it  does  not  appear  that  a  station 
can  only  be  maintained  at  Lansing  at  a  positive  loss  to  the  Company. 
So  the  fact  that  the  crossing  of  another  road  near  this  place  made  it 


28 

necessary  to  keep  an  agent  at  the  junction  thus  formed  is,  as  the 
Commission  view  it,  beside  the  real  question,  as  is  also  the  fact,  if  it 
is  one,  that  respondent  furnishes  no  better  facilities  to  other  villages 
of  like  grade.  It  does  not  appear  that  other  communities,  circum- 
stanced as  this  one  is,  have  been  deprived  of  station  privileges  which 
had  long  been  voluntarily  granted,  and,  to  the  existence  of  which 
the  business  interests  of  large  numbers  of  people  had  conformed 
themselves.  And  even  were  this  shown,  it  does  not  follow  that  be- 
cause one  community  of  people  have  not  enforced  their  legal  rights 
that  another  will  therefore  be  compelled  to  relinquish  theirs. 

In  the  mind  of  the  Commission,  the  right  of  the  residents  of  Lan- 
sing to  have  this  station  restored,  and  an  agent  kept  there  by  the 
road  for  the  transaction  of  their  business,  does  not  admit  of  a  ques- 
tion. 

DECISION. 

It  is  therefore  ordered  that  respondent  restore  said  station  build- 
ing, and  also  keep  hereafter  an  agent  at  the  town  of  Lansing,  and 
that  it  furnish  reasonable  train  facilities  at  that  point  for  the  tran- 
saction of  the  business  of  the  place,  both  as  regards  passengers  and 
freight;  and  in  default  of  a  compliance  with  this  ruling,  it  is  further 
ordered  that  the  Attorney  General  be  requested  to  begin  an  action 
in  mandamus  to  compel  its  enforcement  by  the  courts. 


BFFORE  THE 


STATE  OF  ILLINOIS 


THE  CHICAGO,  MADISON  &  NORTHERN  RAILROAD  Co., 

PETITIONER, 


VS. 


THE  BELT  RAILWAY  Co.  or  CHICAGO, 

AND 

THE  CHICAGO  &  WERTERN  INDIANA  RAILROAD  Co., 

RESPONDENTS. 


PETITION    TO    DETERMINE    PLACE     OP     CROSSING. 


Petition  Filed  December  18,  1889. — Crossing  Viewed  January  9,  1890. — Answer 
Filed  January  13,  1890. — Hearing  January  24  to  January 
29,  1890.— Opinion  Filed  February  13,  1890. 


APPEARANCES. 

For  Petitioner,  B.  F.  AVER  AND  E.  H.  GARY. 
For  Respondents,  OSBORN  &  LYNDE. 


31 


STATEMENT  OF  FACTS. 

The  petitioning  company  was  incorporated  August  3,  1886,  with 
authority  to  construct  a  line  of  road  extending  from  Chicago  to  a 
point  in  Stephenson  County  on  the  Wisconsin  state  line.  It  now 
seeks  to  cross  with  its  tracks  the  line  of  the  Chicago  &  Western  In- 
diana Road  (which  road  is  now  operated  under  a  lease  by  the  Belt 
Railway  Co.  of  Chicago,  co-respondent),  at  a  point  near  the  center  of 
the  northwest  quarter  of  section  thirty-four  (34),  in  the  Town  of 
Cicero,  Cook  County,  Illinois,  through  the  west  half  of  which  section 
the  road  of  respondents  runs  in  nearly  a  due  north  and  south  direc- 
tion. Objection  made  by  respondents  to  the  place  of  crossing  pro- 
posed gives  rise  to  the  present  inquiry.  The  mode  of  crossing  is  not 
in  controversy,  it  being  conceded  the  crossing,  wherever  made,  may 
be  at  grade 

The  place  of  proposed  crossing  is  within  the  corporate  limits  of  the 
Town  of  Cicero,  which  town  has  power  under  the  general  act  of  in- 
corporation "to  provide  for  and  change  the  location,  grade  and  cross- 
ings of  any  railroad."  The  trustees  of  the  town  on  December  4, 
1888,  granted  by  ordinance  the  right  of  way  to  petitioner  through 
the  town,  providing  among  other  things  as  follows: 

"At  the  west  line  of  section  thirty-three  (33),  the  northerly  line  of  the  right 
of  way  of  said  railroad  company  shall  be  the  south  line  of  33d  street,  as  laid 
out  by  T.  F.  Baldwin  in  his  subdivision  of  the  northwest  quarter  of  section 
thirty-three  (33)  township  thirty- nine  (39)  north,  range  thirteen  (13)  east  of 
the  tnird  principal  meridian,  said  south  line  of  33d  street,  being  1,360  and 
92-100  feet  south  of  the  northwest  corner  of  said  section  thirty-thre  (33) ; 
thence  the  track  or  tracks  of  said  railroad  eastward  through  said  section 
thirty- three  (33)  shall  be  laid  south  of  33d  street;  and  through  section  thirty- 
four  (34),  township  thirty-nine  (39)  north,  range  thirteen  east  of  3d  principal 
meridian,  shall  be  laid  south  of  the  north  half  of  the  north  half  of  said  sec- 
tion. 

"Said  tracks  to  be  laid  upon  any  ground  now  owned  or  that  may  hereafter 
be  acquired  by  said  railroad  company  upon  the  line  of  said  route,  but  noth- 
ing in  this  ordinance  shall  be  construed  so  as  to  authorize  the  said  company 
to  occupy  any  streets  or  alleys  lengthwise. 

"Provided,  that'when  the  railroad  tracks  of  the  said  company  shall  cross  any 
street,  alley  or  other  line  of  railroad,  such  crossing  shall  not  be  on  any  trestle 
work  or  viaduct;  and  when  the  tracks  of  said  company  shall  cross  the  tracks 
of  any  other  railroad  company,  such  crossing  shall  be  at  grade." 

This  right  of  way  was  granted  upon  several  conditions  expressly 
named  in  the  ordinance  covering  the  questions  of  rates  of  fare  to  be 
charged  to  and  from  Chicago,  the  location  of  certain  stations  in  the 
town  and  the  payment  of  $10,000  by  the  company  into  the  town 
treasury.  The  company  promptly  accepted  the  conditions,  paid  the 
$10,000,  acquired  a  right  of  way  through  sections  thirty-three  (33) 


32 

and  thirty-four  (34) ,  near  the  northerly  limit  fixed  by  the  ordinance, 
and  proceeded  with  the  construction  of  the  road,  eighty  per  cent  of 
the  work  being  done  by  May  1,  1889,  as  testified  by  the  engineers  of 
petitioner. 

As  the  work  progressed  negotiations  were  in  progress  between  the 
general  managers  and  engineers  of  the  companies  concerned  with  re- 
gard to  the  terms  on  which  the  new  road  should  cross  the  tracks  and 
right  of  way  of  respondents  at  the  point  which  had  been  selected. 
These  negotiations  have  been  proven  before  the  Commission  at 
great  length,  it  being  claimed  by  petitioner  that  its  officers  had  the 
full  consent  and  agreement  of  respondents  to  make  the  crossing  at 
the  point  now  proposed.  This  claim  respondents  deny,  and  assert 
that  while  many  conferences  were  had  no  agreement  was  ever  finally 
made,  and  that  the  question  whether  or  not  any  such  agreement  was 
made  is  for  the  courts  and  not  for  the  Commission.  In  the  negotia- 
tions it  was  assumed  upon  both  sides  that  petitioner  had  the  right  to 
select  itself  the  place  of  crossing;  and  up  to  July  1,  1899,  when  the 
statute  went  into  effect  conferring  jurisdiction  upon  the  Railroad 
Commission  in  such  cases,  this  assumption  was  entirely  correct. 

Respondents  insist  that  the  place  proposed  by  petitioner  for  cross- 
ing is  peculiarly  disadvantageous  to  them.  The  proposed  crossing 
place  is  a  little  less  than  one  mile  south  of  the  place  where  respond- 
ents' tracks  cross  the  C.,  B.  &  Q.  R.  R.  by  means  of  viaduct,  which 
viaduct  is  approached  from  the  south  by  a  sharp  ascending  grade; 
while  a  little  less  than  a  mile  south  from  the  proposed  crossing  the 
tracks  of  respondents'  road  cross  the  Atchison,  Topeka  &  Santa  F6 
Railroad,  which  at  that  place  runs  north  of  and  parallel  with  the 
canal.  South  of  the  canal  and  parallel  with  it  is  the  Chicago  &  Al  ton 
Railroad.  Respondents  insist  the  place  selected  is  dangerous  on 
account  of  the  liability  of  the  long  and  heavy  trains  of  the  Belt  Line 
Company  to  become  stalled  on  the  grade  ascending  to  the  Burlington 
viaduct,  and  the  further  liability  of  such  trains  to  break  their  coup- 
lings upon  the  viaduct  and  precipitate  loose,  unmanageable  cars 
down  the  grade  upon  this  crossing.  It  is  also  claimed  that  the  en- 
tire distance  northward  between  the  Atchison  tracks  to  the  Burling- 
ton viaduct  is  needed  as  an  uninterrupted  running  ground  for  heavy 
trains  to  acquire  necessary  momentum  to  make  the  grade  at  the  via- 
duct; also  that  heavy  trains  coming  southward  over  the  viaduct  are 
liable  to  be  uncontrolable  at  the  point  of  crossing,  and  that  no  inter- 
locking appliance  has  been  suggested  or  can  be  devised  which  will 
render  a  crossing  at  this  point  safe. 

Respondents  ask  that  petitioner  be  compelled  to  vary  the  course 
of  its  line  to  the  southward  from  its  present  location,  beginning 
such  deviation  in  the  northeast  quarter  of  section  thirty-two  (32) , 
proceeding  thence  southeasterly  through  section  thirty-three  (33), 
emerging  from  the  latter  section  near  the  southeast  corner  thereof, 
crossing  respondents'  tracks  near  the  point  where  the  same  are  crossed 
by  the  Atchison  road,  and  south  of  the  south  line  of  section  thirty- 
four  (34) ,  that  from  such  point  of  crossing  petitioner's  road  should 
proceed  parellel  with  the  Atchison  to  a  point  in  section  thirty-six 


33 

(36),  where  it  should  again  reach  the  line  of  its  present  location. 
The  advantage  claimed  for  such  a  change  in  petitioner's  course  and 
place  of  crossing  is  that  it  would  enable  the  crossings  of  the  Atchi- 
son,  the  Alton  and  that  of  petitioner's  road  to  be  interlocked  by  a 
single  system,  and  would  leave  respondents  the  distance  of  about  a 
mile  and  three-quarters  southward  from  the  Burlington  viaduct  free 
of  obstruction  over  which  northward  trains  could  run  for  the  gradet 

It  is  proved  before  us  that  the  additional  distance  which  would  be 
traversed  by  such  a  diverted  line  would  be  a  little  over  2,100  feet, 
and  the  additional  cost  to  petitioner  of  such  a  change  of  location 
would  be  $153,000.  Petitioner  insists  that  the  crossing  as  now  pro- 
posed can  be  safely  interlocked,  and  that  by  placing  electric  annun- 
ciators at  the  Burlington  viaduct  on  the  north,  and  at  or  near  the 
Atchison  crossing  on  the  south  to  notify  the  man  in  the  tower  of  the 
approach  of  respondents'  trains  at  these  distant  points,  this  crossing 
if  equipped  with  a  Saxby  &  Farmer  machine  would  not  materially 
obstruct  or  endanger  the  business  of  respondents,  consisting  as  it 
does  entirely  of  freight. 

We  have  not  attempted  to  state  all  the  facts  and  contentions  in 
detail,  but  only  sufficient  to  show  the  nature  and  scope  of  the  con- 
troverted questions.  It  will  be  seen  three  questions  have  been  the 
subjects  of  controversy  before  us: 

First — Have  the  parties  by  private  agreement  settled  the  point  of 
crossing  for  themselves? 

Second — Will  a  crossing  at  this  point  equipped  with  the  interlock- 
ing and  signaling  device  proposed  result  in  "unnecessary"  delay  or 
danger,  or  both,  to  transportation  and  travel  upon  the  road  of  re- 
spondents? 

Third — Had  the  action  of  the  town  authorities  of  Cicero,  provid- 
ing for  the  location  of  petitioner's  line,  and  the  subsequent  acts  done 
and  expenditures  made  by  petitioner  in  pursuance  of  such  action, 
before  the  statute  of  1889  was  passed,  or  took  effect,  so  far  settled 
the  location  of  petitioner's  road  and  consequently  the  place  of  this 
crossing  that  this  Commission  can  not  now  legally  change  it? 

FINDINGS   AND   CONCLUSIONS. 

There  is  undoubtedly  some  force  in  the  objection  urged  against 
this  place  of  crossing;  but  the  liability  to  delay  and  danger,  has  we 
think,  been  much  exaggerated  by  some  of  respondents'  witnesses.  It 
is  not  proposed,  however,  to  discuss  the  evidence  in  detail  upon  this 
branch  of  the  case;  nor  is  it  proposed  to  discuss  in  detail  the  ques- 
tion whether  or  not  the  parties  reached  a  binding  agreement  in  their 
negotiations  during  the  summer  of  1889.  In  the  view  taken  of  the 
case  by  the  Commission  an  answer  to  the  last  of  the  three  questions 
stated  above  effectually  disposes  of  the  case.  To  that  question  we 
shall  now  devote  a  few  concluding  words. 

—30. 


34 

The  act  conferring  jurisdiction  upon  the  Commission  in  these 
crossing  cases  was  approved  May  27,  1889,  and  took  effect  July  1, 
thereafter.  Under  the  law  existing  prior  to  the  taking  effect  of  this 
act,  it  was  the  right  of  the  company  seeking  a  crossing  to  propose  its 
own  place  and  mode,  and  proceed  accordingly  under  the  Eminent 
Domain  act;  provided  the  place  of  crossing  were  outside  the  corpo- 
rate limits  of  any  city,  town  or  village.  If  the  place  were  within 
such  a  municipality,  then  while  the  railroad  lo  be  crossed  had  itself 
no  more  power  of  objection  against  the  place  or  mode  than  though 
the  place  were  outside,  yet  the  power  of  the  road  proposing  the  cros- 
sing was  in  that  case  to  be  exercised  in  accordance  with  the  power  of 
such  municipality  expressed  in  the  statute  "to  provide  for  and  change 
the  location,  grade  and  crossings  of  any  railroad,"  a  power  the  gen- 
eral act  for  the  incorporation  of  railroads  expressly  preserves  to  the 
municipal  authorities.  The  power  to  locate  conferred  in  the  petition- 
er's charter  had  to  be  exercised  in  accordance  with  the  provisions 
made  by  the  municipality.  (Dunbar's  case,  100  111.,  110.) 

We  have  seen  the  Town  of  Cicero  did  act  by  ordinance  in  this 
matter  December  4,  1888.  True  a  definite  line  for  petitioner's  road 
was  not  fixed  at  the  particular  point  of  crossing,  but  a  definite  point 
was  named  at  the  west  line  of  section  thirty-three  (33)  to  which  the 
road  should  run,  and  it  was  further  provided  that  "thence  the  track 
or  tracks  of  said  railroad  eastward  through  said  section  thirty-three 
(33) ,  shall  be  laid  south  of  33d  street;  and  through  section  thirty- 
four  (34),  *  *  *  shall  be  laid  south  of  the  north  half  of  the 
north  half  of  said  section."  The  point  to  which  respondents  insist 
this  crossing  should  be  moved  is  entirely  south  of  the  south  line  of 
section  thirty-four  (34),  and  would  not  for  that  reason  comply  with 
the  ordinance. 

The  question  now  presented  is  whether  by  acquiring  its  right  of 
way  and  locating  and  grading  its  road  upon  the  present  line  at  a  time 
when  it  had  a  perfect  legal  right  to  exercise  its  own  discretion  in  the 
premises,  subject  only  to  the  direction  of  the  Town  of  Cicero  which 
then  had  unquestionable  jurisdiction  to  provide  for  the  location  of 
railroads,  petitioner  has  not  acquired  substantial  rights  which  can 
not  be  disturbed  by  any  order  of  this  Commission.  The  question  is 
not  precisely  whether  the  act  of  1889,  under  which  we  proceed,  has 
repealed  the  statute  conferring  upon  cities,  towns  and  villages  power 
over  this  subject,  but  is  rather  this:  Assuming  that  the  act  of  1889, 
is  by  implication  a  repeal  of  the  former  power  of  towns  and  villages, 
has  there  not  been  acts  done  and  rights  acquired  under  an  existing 
state  of  law  which  could  not  be  affected  by  such  a  repeal  and  by  the 
conferring  of  a  new  jurisdiction  upon  this  Commission? 

Section  4  of  the  act  to  revise  the  law  in  relation  to  the  construction 
of  statutes,  approved  March  5,  1874  (omitting  immaterial  words), 
provides  as  follows: 

"No  new  law  shall  be  construed  to  repeal  a  former  law  whether  such 
former  law  is  expressly  repealed  or  not  as  to  any  '  act  done 

or  any  right  accrued   or  claim  arising  under  the  former  law,  or  in  any  way 
whatever  to  affect  any  such    *    *    *    act  so  committed  or  done  *    or 

any  right  accrued  or  claim  arising  before  the  new  law  takes  effect;  save  only 


35 

that  the  proceedings  thereafter  shall  conform  so  far  as  practicable  to  the  law 
in  force  at  the  time  of  such  proceeding.  *  *  *  This  section  shall  extend 
to  all  repeals  either  by  express  words  or  by  implication  whether  the  repeal  is 
in  the  act  making  any  new  provision  upon  the  same  subject  01  in  any  other 
act." 

The  petitioning  company  at  a  time  when  under  the  law  it  might 
judge  of  the  propriety  of  the  location  of  its  line  and  the  place  of 
crossing  other  roads,  subject  only  to  the  discretion  vested  in  the 
Town  Board  of  Cicero,  acquired  its  right  of  way,  constructed  eighty 
per  cent  of  its  road,  paid  $10,000  into  the  treasury  of  the  Town  of 
Cicero,  all  in  pursuance  of  existing  law.  The  Town  Council  set  cer- 
tain limits  for  the  location  through  sections  thirty- four  (34) ,  that  is 
to  say:  That  the  road  should  proceed  south  of  a  certain  line.  The 
discretion  thus  left  to  petitioner's  officers  by  the  municipal  authori- 
ties of  Cicero  has  been  exercised  by  the  location  of  the  road  definitely 
upon  a  certain  line,  which  line  was  then  known  to  the  officers  of  re- 
spondents, and  large  expenditures  of  money  were  made  in  the  con- 
struction of  a  road  upon  the  line  so  fixed  before  the  act  conferring 
jurisdiction  upon  this  Commission  had  been  passed.  Can  it  be  said 
that  the  "new  law"  repealed  the  "former  law"  as  to  all  these  "acts 
done"  and  "rights  accrued"  and  "claims  arising  under  the  former 
law"  or  that  the  new  law  can  "in  any  way  whatever  affect  any  such 
act  so  done  or  rights  accrued  before  such  new  law  took  effect?"  It 
seems  to  the  Commission  that  to  so  hold  would  be  a  violation  of  the 
letter  and  spirit  of  the  section  of  the  statute  above  quoted. 

To  say  petitioner  had  lawfully  acquired  a  right  of  way  and  built  a 
line  over  all  the  distance  in  question,  except  the  hundred  feet  in 
width  of  respondents'  right  of  way,  but  that  because  no  pecuniary 
right  had  been  acquired  in  that  particular  spot  before  the  new  law 
went  into  force,  that,  therefore,  the  whole  question  of  the  location  of 
this  road  is  an  open  one  for  the  Commission,  would  not,  we  think,  be 
consonant  either  with  the  statute  or  with  justice. 

DECISION. 

It  is  therefore  ordered  that  petitioner  have  leave  to  cross  with  its 
track  or  tracks  the  track  of  respondents'  road  at  grade  at  the  point 
proposed  by  it,  and  designated  in  its  petition;  but  in  accordance 
with  petitioner's  stipulation  before  the  Commission,  it  is  further 
ordered  that  petitioner  shall  put  in  and  maintain  at  said  crossing  a 
system  of  interlocking  signals  and  devices,  with  electric  annunciators, 
and  a  Fontain  crossing  of  the  character  proposed  and  presented  by 
its  counsel  upon  the  hearing,  the  same  to  be  subject  to  examination 
and  approval  by  the  Consulting  Engineer  of  the  Commission. 

Opinion  filed  February  13,  1890. 


BEFORE  THE 


STATE  OF  ILLINOIS. 


THE  CHICAGO,  MADISON  &  NORTHERN  RAILROAD  Co., 

PETITIONER, 
VS. 

THE  BELT  RAILWAY  Co.  OF  CHICAGO, 

AND 
THE  CHICAGO  &  WESTERN  INDIANA  RAILROAD  Co., 

RESPONDENTS. 


PETITION  TO  DETERMINE  PLACE  OF  CROSSING. 


Petition  Filed  December  18,  1889. — Crossing  Viewed  January  9,  1890. — An- 
swer Filed  January  13,  1890. — Hearing  January  24  to  January  29, 
1890. — Opinion  Filed  February  IS,  1890. — Petition  for 
Rehearing  Filed  February  #5,  1890. — Answer 
Filed  February  28,  1890. — Opinion 
Filed  March  20,  1890. 


APPEARANCES. 

For  Petitioner,  B.  F.  AYER  AND  E.  H.  GARY. 
For  Respondents,  OSBORN  AND  LYNDE. 


OPINION  OF  COMMISSION  ON  PETITION  FOR  REHEARING, 


39 


OPINION  ON  PETITION  FOR  REHEARING. 


While  recognizing  fully  the  force  and  ingenuity  of  the  reasons 
urged  by  the  learned  counsel  of  respondents  in  their  petition  for  re- 
hearing, we  are  unable  to  assent  to  the  conclusions  arrived  at.  It  is, 
in  substance,  insisted: 

First — That  the  Commission  should  have  made  a  formal  finding 
upon  the  question  whether  the  proposed  point  is  a  "proper"  place 
for  a  crossing,  having  due  regard  to  the  effect  thereof  upon  travel 
and  transportation  upon  respondents'  road;  that  said  question  was 
the  only  one  properly  before  the  Commission  for  decision,  and  that 
this  ^ital  question  has  been  ignored. 

Secondly — That  the  Commission  is  widely  wrong  in  the  opinion 
expressed  to  the  effect,  that  petitioner  had  acquired  such  a  right  in 
the  proposed  line  of  location  through  sections  thirty-three  (33)  and 
thirty- four  (34),  by  virtue  of  "acts  done"  and  expenditures  made 
prior  to  the  passage  of  the  statute  of  1889,  as  would  carry  with  it 
the  right  to  cross  upon  such  line,  and  such  a  right  as  would,  in  the 
opinion  of  the  Commission,  be  saved  to  petitioner  by  section  4  of  the 
act  on  Construction  of  Statutes. 

Thirdly — That  if  such  a  right  as  would  be  saved  out  of  the  opera- 
tion of  the  act  of  1889  was  so  acquired  by  petitioner,  then  the  only 
proper  order  to  be  made  by  the  Commission  on  that  hypothesis 
would  be  one  dismissing  the  petition  for  want  of  jurisdiction. 

Such  the  Commissioners  understand  to  be  the  substantial  grounds 
of  the  petition;  and  we  remark: 

1.  That  even  if  the  only  question  before  the  Commission  were,  as 
contended,  whether  the  proposed  place  of  crossing  is  under  the  cir- 
cumstances "proper,"  the  consideration  of  its  "propriety"  (using  that 
term  in  the  broad  sense  it  must  take  in  such  a  connection),  would 
involve  all  the  matters  discussed  in  the  Com  mission's  former  opinion. 
All  those  matters  would  come  in  as  reasons  for  the  propriety  of  the 
crossing  if  the  matter  of  vested  legal  rights  were  entirely  waived.  It 
might  be  "proper"  to  order  a  crossing  in  a  place  where  the  company 
seeking  it  could  allege  no  legal  right,  but  only  a  right  to  be  made 
out  by  considerations  of  reason  and  equity  based  upon  circum- 
stances and  addressed  entirely  to  the  discretion  of  the  Commission. 
But  if  such  moral  considerations  were  reinforced  by  antecedently  ac- 
quired legal  rights  in  the  company  seeking  the  crossing,  the  "pro- 
priety" would  certainly  be  only  increased  by  that  circumstance. 


40 

Counsel  are  in  error  in  saying  the  real  question  involved  has  not 
been  decided.  The  statute  does  not  require  that  reasons  be  given  for 
the  order  made.  The  language  is,  "Said  Board  shall  give  a  decision, 
prescribing  the  place  where  and  the  manner  in  which  said  crossing 
shall  be  made."  The  naked  ruling  fixing  place  and  manner  would 
fully  comply  with  the  law.  It  is  not  incumbent  on  the  Commission, 
nor  would  it  add  the  least  force,  formally  to  say,  "We  hold  the  pro- 
posed crossing  will  not  unnecessarily  impede  or  endanger  travel  or 
transportation,  and  is,  under  all  the  circumstances,  a  'proper'  cross- 
ing; therefore  it  is  'with  due  regard  to  the  safety  of  life  and  prop- 
erty' decided,  etc."  Facts  are  more  important  than  forms.  The  fact 
that  a  crossing  is  ordered  is  evidence  the  Commission  hold  it  under 
all  circumstances  proper,  however  unfortunate  the  reasons  given  may 
be.  Grounds  are  stated,  and  reasons  given  largely  out  of  deference  to 
counsel  who  have  been  heard  at  length  upon  the  case,  and  may  care 
to  know  the  views  of  the  Commission  upon  the  subject  discussed. 
They  are  in  law  no  part  of  the  decision  proper.  If  a  right  decision 
is  arrived  at,  the  fact,  if  -it  be  such,  that  no  reason,  or  even  a  wrong 
reason  is  given,  certainly  does  not  invalidate  the  decision.  We  freely 
admit  the  policy  of  giving  reasons  at  all  is  questionable.  The  party 
who  succeeds  is  never  much  concerned  about  the  court's  mental  op- 
erations; and  reasons  can  rarely  be  cogent  enough  to  convince  or 
satisfy  the  party  defeated. 

2.  We  see  no  reason  to  modify  what  was  before  said  touching  the 
antecedently  acquired  rights  of  petitioner,  or  the  expressed  view  that 
section  4  of  the  act  on  Construction  of  Statutes  is  broad  enough  to 
save  those  rights.  We  are  aware  the  line  where  police  power  ends 
and  vested  property  rights  begin  has  ever  been  a  battle  line  of  liti- 
gation. But  "rested  rights,"  in  the  constitutional  sense,  were  not 
meant  to  be  discussed  in  the  former  opinion.  We  thought  section  4, 
which,  among  other  things  says,  no  new  law  shall,  "in  any  manner 
affect"  any  "act  done"  or  any  "right  accrued"  or  any  "claim  arising" 
under  the  former  law,  was  broad  enough  to  save  to  petitioner  its  sub- 
stantial property  right  in  a  line  of  road  nearly  completed  when  the 
new  law  was  passed,  and  which  had  cost  many  thousands  of  dollars 
that  would  be  a  total  loss  if  a  crossing  elsewhere  were  ordered.  If, 
now,  it  were  fully  established  that  no  such  "saved"  or  "vested"  rights 
as  are  legally  conclusive  have  been  shown  by  petitioner,  the  undis- 
puted fact  would  still  remain  that  a  large  expense  (stated  in  the  evi- 
dence at  $153,000) ,  would  be  inflicted  on  petitioner  if  compelled  to 
adopt  the  new  route  suggested.  The  further  fact  would  remain  that 
property  values  along  the  road  as  built,  and  near  the  crossing  as  pro- 
posed, have  adjusted  themselves  on  the  basis  of  the  present  status. 
The  further  fact  would  exist  that  the  Town  of  Cicero  had,  for  a  con- 
sideration of  $10,000  exercised  an  undisputed  power  by  ordinance  in 
directing  within  fixed  limits  the  location  of  petitioner's  road  through 
Cicero,  and  petitioner  had  acted  under  the  ordinance.  All  this  had 
taken  place  without  the  fault  of  petitioner  or  the  public  who  are  to 
be  affected.  These  acts  were  done  and  rights,  if  any,  accrued,  before 
any  law  existed  under  which  the  right  to  cross  as  proposed  could  be 
questioned.  True,  the  right  of  way  over  the  particular  strip  of 


41 

ground  belonging  to  respondents  had  not  been  acquired,  but  acquir- 
ing right  of  way  and  constructing  a  road  are  acts  which  can  not  take 
place  simultaneously  at  all  points.  .The  work  must  begin  somewhere, 
and  end  somewhere.  Acts  done  at  other  points  are  not  deprived  of 
force  because  the  right  to  a  particular  one  hundred  feet  was  not  ac- 
quired before  this  law  was  passed.  Petitioner  was  not  bound  to  first 
acquire  the  right  of  way  at  that  particular  place  in  anticipation  of 
fiome  exercise  of  police  power  by  the  Legislature.  As  well  say  it 
could  only  build  its  road  through  Stephenson,  Winnebago,  Boone, 
DeKalb,  Kane  and  DuPage  counties  at  its  peril,  lest  its  right  to  enter 
Cook  county  might  be  revoked.  We  say,  waiving  the  question  of 
any  conclusive  legal  right,  all  the  above  considerations  and  facts 
would  still  remain  and  be  powerfully  persuasive  to  the  same  con- 
clusion at  which  the  Commission  arrived,  only  reaching  it  by  a  dif- 
ferent process  of  reasoning.  The  law  under  which  we  act  says 
•crossings  must  be  made  in  such  place  and  in  such  manner  as  will  not 
""unnecessarily  impede  or  endanger,  etc."  In  a  philosophical  sense 
nothing  is  "necessary"  except  that  which  can  not  possibly  be  avoided 
— that  which  is  inevitable.  No  certain  place  of  crossing  or  manner 
of  crossing  could  ever  be  regarded  as  "necessary,"  using  the  term  in 
this  rigid  sense;  for  there  would  in  every  case  be  a  possibility  of 
changing  it  to  avoid  even  the  slightest  danger  or  delay.  The  statute 
uses  the  term,  however,  in  a  different  sense,  and  under  the  term 
""unnecessarily,"  we  deem  the  Commission  authorized  to  consider  all 
the  facts  and  circumstances  of  each  case,  among  which  in  the  case  at 
"bar  would  certainly  be  the  facts  of  petitioner's  expenditures  and  other 
acts  done  and  arrangements  made  before  the  law  of  1889  was  passed, 
the  fact  that  the  public  have  acquired  interests  to  be  injuriously 
affected  by  the  proposed  change,  the  fact  that  such  change  would 
cost  petitioner  an  additional  $153,000,  the  fact  that  appliances  are 
proposed  to  be  used  and  maintained  by  petitioner  at  the  proposed 
crossing  which  will,  the  Commission  believe,  render  the  much  exag- 
gerated danger  and  delay  to  respondents'  trains  very  small,  and  many 
other  facts  we  shall  not  now  stop  to  name.  In  view  of  all  these  mat- 
ters we  could  say,  independently  of  the  question  of  legal  right,  that 
a  crossing  in  the  place  proposed  will  not,  all  facts  and  circumstances 
duly  considered,  "unnecessarily  impede  or  endanger  the  travel  or 
transportation  upon  the  railway  crossed."  The  same  result  precisely 
vould  thus  be  reached  by  a  slightly  different  process. 

3.  The  question  of  jurisdiction  does  not  trouble  the  Commission 
in  view  of  the  fact  that  both  parties  have  in  effect  invoked  its  action 
in  the  premises.  On  one  question,  and  only  one,  both  parties  have 
been  agreed  from  the  first,  namely:  That  a  place  for  this  crossing 
may  be  designated  by  this  Commission.  The  disagreement  is  en- 
tirely as  to  where  that  place  shall  be.  Indeed,  the  jurisdiction  which 
petitioner  expressly  invokes,  could  only  be  objected  to  by  respond- 
ents upon  grounds  entirely  fatal  to  their  case.  If  the  Commission 
has  not  jurisdiction,  then  petitioner  can  cross  as  proposed.  But  let 
us  see  whether  a  legal  right  to  cross,  and  a  right  to  ask  the  Commis- 
sion for  an  order  be  really  so  incompatible  as  counsel  suppose.  In 
these  cases  the  Commission  sits  as  a  court  of  very  limited  jurisdic- 


42 

tion.  If  it  assumes  to  act  in  any  case  of  the  subject  matter  of  which 
it  has  no  jurisdiction,  its  order  will  be  of  no  more  legal  force  than  a 
sheet  of  blank  paper.  Notwithstanding  any  order  made  in  such  a 
case,  all  parties  would  still  retain  and  could  still  assert,  through  the 
proper  courts,  any  legal  rights  they  had  before.  So  that  a  wrong  as- 
sumption of  jurisdiction  would  in  no  case  be  a  great  matter.  According 
to  the  statute  the  existence  of  just  one  fact  gives  the  Commission 
jurisdiction  to  proceed,  and  that  is  the  fact  that  "objection  be  made." 
The  full  language  is,  "If  in  any  case  objection  be  made  to  the  place 
or  mode  of  crossing  proposed  by  the  company  desiring  the  same, 
either  party  may  apply  to  the  Board  of  Railroad  and  Warehouse 
Commissioners,  and  it  shall  be  their  duty,  etc."  Can  not  "objection 
be  made"  as  well  in  a  case  where  a  legal  right  exists,  as  where  the 
right  asserted  is  only  moral?  There  has  certainly  been  "objection" 
enough  made  in  the  case  at  bar  to  bring  it  within  the  language  of 
the  statute,  if  taken  literally,  and  we  have  seen  no  harm  can  come 
from  so  construing  the  statute.  The  counsel  seem  to  suppose  our  ex- 
pressed opinion  that  petitioner  has  a  legal  right  is  a  judicial  deter- 
mination of  the  fact.  It  is  not  at  all,  but  is  simply  a  reason  given  for 
our  order.  If  this  Commission  had  power  to  judicially  determine  that 
question  in  this  proceeding,  in  a  manner  binding  upon  the  parties, 
and  could  by  some  proper  writ  execute  the  order,  it  might  with  some 
consistency  be  said  nothing  further  would  be  required.  But  we  can 
not  judicially  determine  the  fact,  and  what  was  said  in  our  opinion 
binds  nobody.  The  order  which  it  is  conceded  we  have  power  to 
make,  does  not  execute  itself,  but  remains  to  be  enforced  through 
the  courts.  The  learned  counsel  of  respondents  disagree  with  as  as 
to  the  existence  of  any  legal  right  in  petitioner.  We  have  much  re- 
spect for  their  opinion  while  not  assenting  to  it.  For  aught  we  know, 
they  might  succeed,  in  a  forum  having  jurisdiction,  in  securing  a 
judgment  upon  that  question  contrary  to  our  poorly  expressed 
reasons.  Then  the  parties  would  be,  at  the  end  of  such  litigation,  just 
where  they  now  are,  and  would  still  be  under  the  necessity  of  calling 
on  the  Commission  for  an  order.  It  may  be  freely  conceded  that  if 
petitioner  could  show  no  ground  except  a  cold  legal  right  without 
equity  or  justice — a  case  where  all  the  equities  were  against  the 
crossing  proposed,  and  where  we  would  not  act  but  for  the  legal 
right  shown — then  the  action  suggested  might  be  proper.  The  peti- 
tion could  perhaps  properly  in  such  a  case  be  dismissed,  and  the 
parties  relegated  to  their  legal  rights  and  judicial  remedies.  Such  is 
not  this  case;  and  under  all  circumstances,  and  particularly  in  view 
of  the  strong  equities  made  out  by  petitioner  in  addition  to  what  we 
have  deemed  its  legal  rights,  we  must  decline  to  grant  a  rehearing 
upon  the  grounds  assigned. 

Rehearing  denied. 

Opinion  rendered  March  20,  1890. 


BEFORE  THE 


Railroad  and  Warehouse  Commission 


STATE  ©F  ILLINOIS. 


THE  CHICAGO,  MADISON  &  NORTHERN  RAILROAD  Co., 

PETITIONER, 
VS. 

THE  CHICAGO  &  WESTERN  INDIANA  RAILROAD  Co., 

AND 
THE  PITTSBURG,  FT.  WAYNE  &  CHICAGO  RAILWAY  Co., 

RESPONDENTS. 


PETITION  TO  DETERMINE  PLACE  AND  MODE   OF    CROSSING. 


Petition  Filed  March  22,  1890.— Crossing  viewed  March  27,  1890. — 
Answer.  C.  &  W.  I.  R.  E.  Co.  Filed  March  27,  1890.— 
Hearing  March  27  to  April  3, 1890.— Opin- 
ion Filed  and  Order  Entered  April 
17,  1890. 


APPEARANCES: 

For  Petitioner,  Hon.  B.  F.  AYER,  HON.  JAMBS  FENTRESS,  AND  HON.  E.  H. 

GARY. 

For  Chicago  &  Western  Indiana  Railroad  Co.,  OSBORN  &  LYNDE. 
For  Pittsburgh,  Ft.  Wayne  &  Chicago  Railway  Co.,  HON.  GEO.  WILLARD. 


OPINION  ©F  COMMISSION. 


45 


OPINIONS  OF  COMMISSION, 


OPINION   BY   PHILLIPS,   COMMISSIONER. 

Petitioner  proposes  to  cross  with  its  two  main  tracks  the  tracks  of 
the  respondent  companies  upon  and  near  Stewart  avenue  in  the  city 
of  Chicago.  It  alleges  that  objection  to  the  proposed  crossing  is 
made  by  respondents,  and  asks  that  this  Commission  enter  an  order 
under  the  act  of  1889,  prescribing  the  place  where  and  the  manner 
in  which  said  crossing  shall  be  made.  Such  formal  matters  are 
alleged  in  the  petition  as  bring  the  case  within  the  statute. 

The  first  point  made  relates  to  the  jurisdiction  of  the  Commission, 
which  is  questioned  upon  the  ground  that  respondents  did  not,  prior 
to  the  exhibiting  of  the  petition,  make  specific  objection  to  the  cross- 
ing as  now  proposed.  The  statute  says:  "If  in  any  case  objection 
be  made  to  the  place  or  mode  of  crossing  proposed  by  the  company 
desiring  the  same,  either  party  may  apply  to  the  Board  of  Railroad 
and  Warehouse  Commissioners,  etc."  Whether  objection  to  the  pre- 
cise proposition  now  contained  in  the  petition  was  ever  in  terms 
made  by  respondents  or  not,  there  is  no  doubt  at  all  that  objection  is 
now  being  made  to  it,  and  there  is  further  no  doubt  that  objection  to 
any  crossing,  unguarded  by  interlocking  devices,  has  all  the  time  ex- 
isted, whether  such  objection  was  ever  formally  expressed  or  not. 
Ordinarily  when  a  defendant  concedes  the  right  claimed  in  a  suit,  he 
comes  into  court  offering  to  perform  all  that  is  demanded,  and  say- 
ing he  has  ever  been  willing  and  thus  makes  a  question  as  to  plain- 
tiff's right  to  costs.  But  there  can  be  between  these  parties  no 
question  of  costs,  because  the  statute  makes  petitioner  pay  the  costs, 
without  regard  to  the  fate  of  its  petition.  Were  this  otherwise,  that 
is,  were  the  costs  to  abide  the  result  of  the  suit  as  in  ordinary  cases, 
and  were  respondents  now  disclaiming  all  objection  to  petitioner's 
proposition,  offering  to  let  the  crossing  be  constructed  as  proprosed, 
and  asking  a  dismissal  at  petitioner's  cost  upon  the  ground  that  no 
objection  had  ever  been  made,  the  position  would  better  commend 
itself  to  our  ideas  of  consistency  and  justice.  But  to  say,  "we  now 
object,  but  did  not  formally  do  so  before  suit,  wherefore  we  ask  that 
petitioner  go  out  of  court,"  (only,  it  may  be  added,  to  come  im- 
mediately back  again  with  the  same  proposition  now  pending) 
would  be,  to  say  the  least,  taking  rather  "finer  sights"  than  a  due  re- 
gard for  substantials  would  justify. 

The  objection  to  the  jurisdiction  should,  therefore,  be  overruled. 


46 

It  is  contended  that  the  crossing  as  proposed  by  petitioner  will, 
if  constructed,  occasion  danger  and  delay  and  that  the  Commission 
should,  as  the  case  stands,  do  one  of  two  things,  namely:  First — 
either  refuse  the  prayer  of  the  petition  and  deny  the  crossing  alto- 
gether; or,  secondly — allow  the  crossing  only  upon  condition  that  a 
system  of  interlocking  switches  and  signals  be  put  in  covering  these 
crossings  and  such  other  points  in  the  neighborhood  as  would  neces- 
sarily be  comprehended  in  a  practical  system.  It  is  strenuously 
urged  that  this  Commission  has  power  to  do  either  of  these  things. 

To  these  questions  a  few  words  will  now  be  devoted. 

And  first,  would  it  be  proper  to  simply  refuse  the  prayer  of  this 
petition,  without  making  any  affirmative  order  for  a  crossing?  The 
statute  says:  "After  full  investigation,  and  with  due  regard  to  safety 
of  life  and  property,  said  Board  shall  give  a  decision  prescribing  the 
place  where,  and  the  manner  in  which  said  crossing  shall  be  made.1' 
This  is  not  equivalent  to  saying,  if  the  proposed  crossing  is  safe  and 
proper  the  Commission  shall  authorize  it,  and,  if  the  contrary,  refuse 
it.  Some  crossing  in  some  place  and  mode,  must,  in  any  event,  be 
provided  for;  and  the  decision  must  "prescribe"  a  crossing,  not  deny 
one.  It  need  not  necessarily  be  the  same  crossing  prayed  for  in  the 
petition,  but  may  differ  from  that  in  place  and  manner,  the  word 
"manner"  being  used  in  the  sense  hereinafter  assigned  to  it.  We 
might  vary  the  place  of  crossing;  and  we  might  compel  a  crossing 
over  or  under,  or  a  crossing  at  a  different  angle,  or  a  crossing  con- 
structed with  different  frogs  or  appliances  from  those  proposed. 
We  might,  in  short  vary  the  proposition  in  any  particular  which  re- 
fers to  the  manner  of  the  location  of  the  tracks  of  the  one  company 
across  the  tracks  of  the  other  company. 

But,  in  this  case  there  is  no  contention  for  a  crossing  in  a  differ- 
ent place  or  in  a  different  mode  from  that  proposed.  The  Commis- 
sion might,  of  its  own  motion,  have  the  neighborhood  of  the  cross- 
ing examined  by  expert  engineers  with  a  view  to  some  variation  of 
place  or  mode.  The  interests  of  respondents  are,  however,  a  guaran- 
tee of  as  high  vigilance  to  find  a  better  place  and  mode  as  would 
likely  be  exercised  by  any  experts  we  could  employ;  and  since  no 
other  place  or  mode  claimed  to  be  better  is  suggested  by  any  of  the 
parties  interested,  we  may  safely  conclude  a  grade  crossing  in  the 
place  and  manner  proposed  will  occasion  as  little  danger  and  delay 
as  any  we  could  select;  and  a  decision  must,  on  this  point,  be  made 
accordingly. 

It  only  remains,  therefore,  to  determine  whether  the  Commission 
has  power  to  compel  the  petitioner,  or  the  parties  generally  concerned, 
to  guard  and  operate  this  crossing  (which,  we  have  seen,  must  be 
authorized) ,  by  means  of  an  interlocking  system.  Is  an  interlock- 
ing plant  embraced  in,  or  any  part  of,  a  "crossing"  as  the  term  is 
used  in  the  act  of  1889? 

The  question  is  a  new  one.  In  each  of  the  cases  arising  under  this 
law,  previously  decided  by  the  Commission,  the  petitioner  stipulated 
before  the  Commission  to  put  in  and  maintain  interlocking  devices; 


and  the  order  entered  in  each  case  only  embodied  the  stipulation, 
without  the  Commission  having  really  considered  the  question  of  its 
power  under  the  statute  in  the  absence  of  agreement.  The  question 
is  therefore  as  open  as  though  nothing  had  been  contained  in  the 
former  decisions  upon  the  subject. 

The  respondents  in  this  case  have  signified  their  willingness  to 
submit  to  this  Commission  on  their  part  the  question  of  interlock- 
ing. We  might  therefore,  so  far  as  they  are  concerned,  if  petitioner 
were  also  consenting,  make  an  order  covering  the  subject  by  way  of 
arbitration,  exercising  not  the  power  conferred  by  statute,  but  by 
the  parties.  But  the  petitioner  is  not  consenting,  and  stands  upon 
its  legal  rights. 

It  may  be  premised  that  an  interlocking  machine  would  be  of  no 
efficacy,  unless  provision  were  fully  made  for  its  maintenance  and 
future  operation.  It  would  therefore  be  idle  to  order  the  construc- 
tion of  a  plant,  unless  we  have  power  to  go  further  and  order  its 
maintenance,  and  its  use  at  this  crossing,  and  clearly,  if  one  power 
exists,  the  other  must  exist  also,  or  the  law  is  futile. 

It  may  be  further  premised  that  interlocking  devices  have  more 
particular  reference  to  the  speed  of  travel  than  they  do  to  safety. 
The  legislature  of  this  Stute  has  for  the  safety  of  the  public,  pro- 
vided by  general  statute  a  certain  measure  of  caution  to  be  observed 
at  all  railway  crossings,  which  statutory  regulation  is  as  follows: 

"All  trains  running  on  any  railroad  in  this  State,  when  approach- 
ing a  crossing  with  another  railroad  upon  the  same  level,  *  *  * 
shall  be  brought  to  a  full  stop  before  reaching  the  same,  and  within 
eight  hundred  (800)  feet  therefrom,  and  the  engineer  or  other  person 
in  charge  of  the  engine  attached  to  the  train  shall  positively  ascer- 
tain that  the  way  is  clear  and  that  the  train  can  safely  resume  its 
course  before  proceeding  to  pass  the  *  *  *  crossing." 

This  precaution  is  enjoined  under  a  penalty  of  $200.00  against  the 
engineer  in  charge  of  the  train,  and  $200.00  against  the  corporation. 
Lately,  interlocking  devices  have  been  brought  into  use,  by  means  of 
which  the  delay  from  these  full  stops  at  crossings  may  be  avoided; 
and  in  1887  the  legislature  of  this  State  passed  a  law  recognizing 
these  devices,  under  which  law  the  operating  companies  are  empow- 
ered to  voluntariljr  interlock  their  crossings,  and  with  the  sanction 
and  approval  of  this  Commission,  run  them  without  stopping.  It  is 
the  desire  for  speed,  far  more  than  safety,  which  leads  to  interlock- 
ing. Indeed,  it  may  be  questioned  whether  the  use  of  any  device 
yet  invented  is  more  safe  than  to  obey  the  statutory  injunction  and 
come  to  a  full  stop. 

If,  now,  we  examine  more  closely  this  statute  of  1887  which  did 
confessedly  give  to  the  Commission  certain  power  with  reference  to 
interlocking  plants,  we  find  that  when  the  legislature  had  this  sub- 
ject of  interlocking  before  them  and  were  professedly  acting  upon  it, 
they  gave  to  the  Railway  Commission  no  power  to  force  interlocking 
upon  any  unwilling  company.  Under  that  act,  the  companies  must, 
by  mutual  agreement,  set  up,  equip  and  arrange  for  the  operation  of 
the  interlocking  plant,  leaving  to  the  Commission  only  the  function 


48 

of  inspection  and  approval.  The  legislature  must  have  known  there 
were  many  old  crossings  in  Illinois  where  the  danger  is  as  great  as 
at  the  new  ones,  and  the  delay  vexatious  to  travelers.  Yet  they  did 
not  see  fit  to  provide  for  any  other  or  further  interlocking  plants 
than  could  be  mutually  agreed  upon  by  the  companies  concerned. 
Had  the  legislature  intended  to  invest  this  commission  with  power 
to  guard  the  public  against  danger  and  delay  by  means  of  interlock- 
ing devices,  is  it  not  reasonable  to  suppose  they  would  have  conferred 
that  power  clearly  and  unmistakably,  and  have  done  so  in  the  act 
upon  that  particular  subject,  instead  of  leaving  so  important  a  power 
to  be  gathered  incidentally,  and  purely  by  implication,  from  an  act 
embracing  a  wholly  different  subject  matter?  And  would  they  not, 
while  about  it,  have  made  the  power  broad  enough  to  include  other 
crossings  besides  newly  constructed  ones,  which  other  crossings  are  as- 
much  within  the  mischief  as  any;  and  their  equipment  could  surely 
as  well  be  paid  for  by  old  established  companies  as  that  of  new  cross- 
ings could  by  new  and  presumably  weaker  companies? 

Nor  is  this  all.  This  act  of  1887,  while  giving  the  Commission 
power  to  approve  crossing  devices  voluntarily  put  in,  confers  no- 
power  whatever  to  compel  their  continued  use  and  maintenance.  The 
companies  which  mutually  agree  to  interlock  a  joint  crossing,  may 
mutually  agree  to  abandon  the  system,  and  go  back  to  the  statutory 
method  of  coming  to  a  full  stop,  and  this  Commission  could  exercise 
no  control  over  their  free  choice  in  that  particular.  It  would  be  in- 
teresting to  know  how  we  would  justify  the  exercise  of  a  greater 
power  under  the  act  of  1889,  which  says  no  word  about  interlocking, 
than  we  could  exercise  under  the  act  of  1887,  which  does  professedly 
embody  the  legislative  will  upon  that  subject.  And,  as  before  ob- 
served, unless  we  can  compel  the  maintenance  and  use  of  a  plant,  to 
order  its  construction,  at  a  cost  of  many  thousands  of  dollars,  would 
be  sheer  idleness  and  folly. 

Such  being  the  state  of  the  law  when  the  act  of  1889  was  passed, 
let  us  now  look  at  that  particular  act,  and  see  if  it  confers  any  such 
power  as  is  here  claimed,  either  expressly  given,  or  necessarily  im- 
plied. 

The  most  careful  reading  of  the  statute  reveals  to  me  no  power 
whatever,  over  the  subject  of  interlocking.  The  act  meets  only  the 
case  of  how  one  company  may  cross  "ivith  its  tracks  the  main  lines 
of  another  railroad  company."  The  confusion  has  arisen  entirely 
through  a  misapprehension  of  what  is  included  in  the  word  "cross- 
ing." It  is  one  thing  for  a  company  to  cross  the  line  of  another 
"with  its  tracks,"  and  another  thing  to  cross  the  same  point  after- 
wards with  its  trains.  The  manner  in  which  the  tracks  shall  cross  is 
one  thing,  and  the  manner  in  which  trains  may  cross,  or  pass,  and 
how  they  shall  be  operated,  is  quite  another  thing.  When  we  speak 
of  a  railway  crossing,  we  properly  refer  to  the  position  of  the  tracks 
of  two  roads,  and  not  to  the  passage  of  trains. 

If  the  act  is  read  with  this  distinction  clearly  in  view,  there  seems 
to  be  no  doubt  as  to  its  meaning.  The  title  of  the  act,  which  may 
properly  be  referred  to  to  aid  in  a  doubtful  construction,  is  in  these 


49 

words:  "An  act  in  relation  to  the  crossing  of  one  railway  by 
another,  and  to  prevent  danger  to  life  and  property  from  grade 
crossings."  Clearly,  "the  danger  to  life  and  property,"  which  was  to 
be  prevented  was  that  arising  "from  grade  crossings"  as  distinguished 
from  those  crossings  which  are  not  at  grade;  that  is  to  say:  cross- 
ings either  over  or  under,  and  nothing  further  than  this  was  in  the 
mind  of  the  man  who  drafted  this  title. 

Passing  a  step  further  we  find  the  general  declaration  that  a  com- 
pany "desiring  to  cross  with  its  tracks  the  main  line  of  another  * 
*  *  *  shall  construct  the  crossing  at  such  place  and  in  such  man- 
ner as  will  not  unnecessarily  impede  or  endanger  the  travel,  etc."  Tt 
does  not  say  the  crossing  shall  be  so  guarded  after  construction  as  to 
secure  reasonable  safety  and  expedition,  but  it  shall  be  so  "con- 
structed" in  the  first  instance  as  to  Secure  that  end.  Unless  the 
construction  of  a  crossing  can  be  said  to  include  also  both  the  con- 
struction and  the  operation  of  an  interlocking  plant,  it  is  difficult  to 
see  what  authority  so  far  appears  to  do  the  acts  contended  for. 

The  same  may  be  said  of  that  clause  of  the  statute  which  directs  a 
decision,  "prescribing  a  place  where  and  the  manner  in  which  said 
crossing  shall  be  made."  Here  is  nothing  affecting  the  manner  in 
which  a  crossing  shall  be  guarded  or  the  manner  in  which  trains 
shall  be  operated  across  it,  and  it  is  a  "crossing"  that  is  to  be  "pre- 
scribed" and  "made"  and  not  an  interlocking  plant. 

Section  2  of  the  act  provides  that  "the  railroad  company  seeking 
the  crossing  shall  in  all  cases  bear  the  entire  expense  of" — what? 
An  interlocking  plant  to  regulate  the  operation  of  trains  at 
the  crossing?  Not  at  all.  Shall  "bear  the  entire  expense  of  the 
construction  thereof."  How  does  the  Commission  from  this  derive 
the  power  to  make  petitioner  bear  another  and  much  larger  expense, 
not  arising  from  the  construction  of  the  crossing  proper,  but  having 
relation  entirely  to  the  manner  of  operating  the  trains  of  the  com- 
panies? 

It  is  agreed  that  an  interlocking  plant,  to  be  effective  at  this  point, 
must  embrace  certain  crossing  points  on  the  Chicago  &  Alton  and 
the  Santa  Fe"  tracks  and  right  of  way.  Mr.  Thomas,  General  Man- 
ager of  one  of  the  respondents,  testified  on  this  point  as  follows: — 

"Q.  At  Stewart  avenue  could  an  interlocking  system  be  put  in 
that  would  be  safe,  that  did  not  include  all  of  the  tracks  at  that 
point?" 

"A.     It  should  include  all  of  them." 
"Q.     That  would  include  what  tracks?" 

"A.  The  Madison  &  Northern,  Ft.  Wayne  &  Chicago,  Alton,  and 
Western  Indiana,  and  I  think  the  interlocking  of  the  lead  track  of 
the  Santa  Fe~." 

The  Alton  and  Santa  F6  Companies  are  not  before  us,  and  not 
parties  to  this  proceeding.  How,  therefore,  could  we  make  an  order 
affecting  their  property  and  controlling  the  operation  of  their  trains, 
which  would  be  binding  upon  them?  It  involves  only  an  elementary 

— O  4 


50 

principle  to  say  that  parties  who  have  not  had  their  day  in  court 
can  not  be  bound  by  the  judgment,  even  where  the  subject  matter 
of  the  proceeding  is  within  the  jurisdiction.  But  where  jurisdiction 
of  parties  and  subject  matter  are  both  wanting,  the  very  suggestion 
of  such  an  order  becomes  little  short  of  preposterous. 

To  further  illustrate  the  want  of  power  in  the  premises,  suppose 
the  respondent  companies  were  consenting  to  nothing  in  this  case, 
did  not  even  come  before  us  with  any  suggestion,  as  would  be  their 
undoubted  right,  and  we  upon  looking  over  the  crossing  proposed 
should  believe  it  improper  unless  protected  by  interlocking.  Could 
we  in  such  a  case,  make  an  order  which  would  comtemplate  the  tak- 
ing, or  use,  of  respondents'  grounds,  by  the  location  on  them  of  pipes, 
boxes,  wires,  signals  and  perhaps  a  tower  house,  some  of  the  appli- 
ances extending  thousands  of  feet  upon  their  lands,  the  use  of  which 
being  imperatively  commanded,  would  materially  and  permanently 
affect  the  operation  of  their  trains,  and  all  without  their  consent? 
Certainly  we  would  have  no  such  power.  And  it  does  not  even  tend 
to  answer  the  difficulty  to  say  the  order  would  in  that  case,  be  for  the 
benefit  of  respondents.-  Parties  have  some  right  to  judge  for  them- 
selves what  is  beneficial  to  their  property;  and  those  who  would  take 
that  delicate  function  from  them  must  show  undoubted  legal  authority. 

That  this  subject  is  one  within  the  power  of  constitutional  police 
regulation  by  the  legislature  is  not  questioned;  but  the  legislature 
must  act  before  the  Commission  can  act.  The  case  before  us  can  not 
be  decided  upon  sentimental  notions  as  to  what  the  law  ought  to  be, 
but  must  be  met  upon  the  plain  issue  of  what  the  law  in  fact  is. 
Nothing  in  the  act  of  1887  or  of  1889  empowers  this  Commission  to 
compel  interlocking,  in  the  absence  of  the  mutual  agreement  of  the 
parties,  nor  can  any  such  power  be  said  with  reason  to  be  implied  as 
being  necessarily  involved  in  the  carrying  out  of  the  objects  of  either 
of  those  statutes.  The  precautions  for  public  safety  which  are  put 
within  the  discretion  of  this  Commission  by  the  act  of  1889  are  such 
and  only  such  as  arise  out  of  a  choice  of  the  different  ways  in  which 
the  crossings  of  railway  tracks  proper  may  be  constructed,  the  most 
obvious  distinction  being  between  those  which  are  built  on  a  level 
and  those  which  are  separated,  one  passing  over  the  other.  The 
question  why  a  larger  power  has  not  been  conferred  may  properly  be 
addressed  to  the  legislature. 

It  is  my  opinion  an  order  should  be  entered  prescribing  a  crossing 
in  the  place  and  manner  designated  in  the  petition. 

CBIM,  Commissioner: — I  concur  in  the  conclusions  reached  in  the 
foregoing  opinion. 

WHEELER,  Chairman,  dissenting. 

I  present  my  views  in  the  case  under  advisement  with  great  re- 
luctance, but,  being  unable  to  reconcile  the  opinion  of  a  majority  of 
the  Commission  with  the  facts  and  law  in  the  case  as  I  understand 
them,  I  am  led  to  dissent  from  certain  of  their  findings  for  the  fol- 
lowing reasons: 


51 

My  interpretation  of  the  statute  under  which  this  hearing  is  held 
gives  it  a  broader  scope,  and  a  more  extended  jurisdiction  to  the 
Commission  than  my  associates  allow,  and,  I  may  add,  broader  and- 
more  extended  than  the  learned  counsel  for  the  parties  to  the  contro- 
versy admit. 

The  right  of  the  petitioning  company  to  cross  the  tracks  of  the 
respondent  companies  at  some  point  is  conceded,  and  no  other  point 
being  suggested,  it  may  be  assumed  that  the  place  proposed  is  the 
most  feasible  and  the  best  that  can  be  selected.  Therefore,  "the 
place  where  said  crossing  shall  be  made"  may  be  considered  estab- 
lished. Thus  far  the  Commission  seem  to  be  of  one  opinion. 

The  vital  point  in  the  controversy,  and  upon  which  our  views  differ, 
is  found  in  "the  manner  in  which  said  crossing  shall  be  made." 
What  does  the  word  "manner"  as  used  in  the  statute  mean?  How 
far  does  the  question  of  "manner"  extend?  Must  we  confine  it  to 
that  portion  of  the  respondent  companies'  "main  lines"  actually  en- 
closed by  the  petitioning  company's  tracks? 

The  statute  under  which  this  case  is  brought  is  somewhat  obscure, 
inasmuch  as  it  does  not  specifically  define  the  meaning  of  the  term, 
and  upon  the  conclusion  reached  depends  the  extent  of  the  jurisdic- 
tion of  the  Commission.  The  cost  of  constructing  the  crossing  is 
provided  for  in  the  act ;  aside  from  that,  the  only  reservation  is  found 
in  the  question  of  "damage,"  which,  with  the  extent  of  jurisdiction, 
covers  the  entire  matter  in  controversy. 

The  enacting  clause  of  the  statute  clearly  indicates  that  the  intent 
of  its  framers  was  to  "prevent  danger  to  life  and  property  from  grade 
crossings,"  and  in  its  first  section  it  is  expressly  stipulated  that  the 
Commission  shall  have  "due  regard  to  safety  of  life  and  property," 
and  "shall  prescribe  the  manner  in  which  said  crossing  shall  be 
made."  Can  there  be  any  doubt  about  the  intention  of  the  law-mak- 
ing power?  The  question  of  safety  is  made  paramount — the  first  to 
be  considered — one  that  must  not  be  lost  sight  of;  therefore,  I  con- 
clude that  a  reasonable  construction  of  this  clause  places  all  matters 
pertaining  to  the  question  of  safety  within  the  jurisdiction  of  the 
Commission,  including  the  side  tracks,  switches,  turn-outs,  etc., 
of  all  companies  adjacent  to  and  affected  by  the  crossing.  All  of 
these,  in  my  opinion,  are  covered  by  the  statute  and  must  be  subject 
to  the  restrictions  contemplated  by  the  law. 

Assuming  this  view  to  be  correct,  do  we  not  fail  in  our  duty  if  we 
ignore  the  plain  intent  of  the  law  and  allow  a  crossing  in  a  locality 
teeming  with  human  life  without  such  safety  appliances  as  will  re- 
duce the  element  of  danger  to  a  minimum? 

But,  it  is  argued,  safety  appliances  concern  only  the  operation  of 
railroads,  a  question  not  referred  to  this  Commission  by  the  act, 
therefore  it  is  outside  of  and  beyond  our  jurisdiction.  In  answer, 
permit  me  to  say  that  while  I  claim  no  right  to  impose  conditions  on, 
or  in  any  manner  interfere  with,  any  crossing  constructed  or  located 
prior  to  the  time  the  present  act  went  into  effect,  i.  e.,  July  1,  1889, 
I  am  clearly  of  the  opinion  that  we  not  only  have  the  right,  but  it  is 


52 

our  solemn  duty  to  require  proper  safeguards  for  public  protection 
in  all  cases  arising  subsequent  to  that  date,  failing  in  which,  the 
community  will  hold  us  responsible  for  any  disaster  that  may  occur. 

Again,  we  are  told  that  interests  other  than  those  of  the  parties  to 
this  case  will  be  disturbed  by  the  construction  and  operation  of 
safety  appliances,  interests  not  submitted  to  us  for  adjudication,  and 
any  decision  of  this  Commission  affecting  such  interests  will  not  be 
recognized  as  binding  by  the  parties  thereto.  In  reply,  it  may  be 
said  that,  while  all  parties  that  may  be  directly  or  indirectly  inter- 
ested in  the  decision  of  the  Commission  have  an  undoubted  right  to 
a  hearing,  our  authority  to  act  in  the  premises  is  not  abrogated  by 
their  failure  to  appear,  and  our  duty  to  render  a  decision  covering 
the  whole  question  remains  whether  they  do  or  do  not  appear. 

How  far  the  question  of  damages  extends  is,  perhaps,  more  diffi- 
cult to  determine.  It  may  not,  however,  be  unreasonable  to  claim 
that  it  covers  only  such  property  as  is  rendered  wholly  or  partially 
useless  by  the  tracks  of  the  petitioning  company  and  the  necessary 
safety  appliances.  In  my  opinion  it  does  not  include  the  cost  of 
such  appliances,  their  operation  or  maintenance,  these  being  an 
expense,  not  a  damage.  My  conclusions  therefore  are: — 

1st.  The  law  as  enacted  gives  the  Commission  full  jurisdiction 
over  all  questions  pertaining  to  crossings  at  grade,  cost  of  crossing 
and  damage  excepted. 

2d.  The  Commission  has  the  right  to  name  the  place  of  crossing, 
and  the  right  to  prescribe  the  manner  as  well. 

3d.  In  prescribing  the  manner,  the  Commission  has  the  power  to 
require  such  appliances  as  will  insure  a  reasonable  degree  of  safety 
to  the  public. 

4th.  The  cost  of  constructing,  operating  and  maintaining  the 
necessary  safety  appliances  does  not  fall  under  the  question  of  dam- 
ages. 

5th.  The  Commission  has  no  right  to  grant  the  request  of  the 
petitioning  company  without  requiring  such  safety  appliances  as 
will  render  the  crossing  practically  safe. 

The  following  order  was  entered  by  the  Commission: 
CHICAGO,  MADISON  &  NORTHERN  R.  R.  Co.,  J  peUUon  ^  determine 

CHICAGO  &  WESTERN  IND!ANA  R.  R.  Co.  and        ?lace .  and  mode 


Jf*rnQ  Qi'ii  /i 
ing. 

In  the  matter  of  the  above  petition  it  is  decided  and  ordered  by 
the  Commission  that  petitioner  have  leave  to  cross  with  its  tracks 
the  main  lines  and  tracks  of  the  respondent  companies  at  the  place, 
and  in  the  manner  designated  in  its  petition,  and  as  shown  upon  the 
plat  to  said  petition. 


BEFORE  THE 


Railroad  and  Warehouse  Commission 


OF  THE 


STATE  ©F  ILLINOIS. 


COMPLAINT. 


JOSEPH  TAYLOR,  Complainant, 


vs. 


THE  OHIO  &  MISSISSIPPI  RY.  Co.,  Respondent. 


EXTORTION  AND  UNJUST  DISCRIMINATION. 


Complaint  Filed  June  20,  1890. — Hearing  July  1.1,  1890. — Decision  Rendered 

September  20,  1890. 


APPEARANCES. 
For  Complainant.— WILDERMAN  &  HAMILL. 


55 


OPINION  OF  COMMISSION. 


OPINION   BY   PHILLIPS,   COMMISSIONER. 

Complainant,  Joseph  Taylor,  in  1888,  opened  a  coal  mine  in  St. 
Clair  county,  some  twelve  miles  from  East  St.  Louis,  between  the 
stations  O'Fallon  and  Alma,  and  a  distance  of  2,800  feet  north  of  the 
line  of  defendant's  railroad.  While  the  shaft  was  being  sunk,  Taylor 
applied  to  president  Barnard,  of  the  railway  company,  to  put  down 
a  track  from  the  railroad  to  his  coal  shaft,  which  the  president  de- 
clined to  do.  The  negotiations  were  partly  oral  and  partly  by  cor- 
respondence. 

On  July  11,  President  Barnard  wrote  Taylor: 

"How  do  you  propose  to  get  the  coal,  provided  the  track  is  laid 
from  your  mine,  to  the  tracks  on  the  company's  right  of  way?  Have 
you  counted  upon  the  company  being  willing  to  make  the  delaj'  and 
the  extra  run  without  charge,  or  do  you  propose  to  haul  it  by  mules, 
or  horses,  or  otherwise."  Also,  "With  satisfactory  assurance  that  a 
much  increased  business  can  be  secured  at  such  rates  as  we  can  get, 
or  are  willing  to  make,  on  coal,  I  shall  be  able  to  determine  to  what 
extent  we  can  afford  to  put  money  into  side  tracks  to  so  aid  the  de- 
velopment of  your  property." 

On  August  13,  President  Barnard  again  wrote  Taylor: 

"I  have  to  advise  you  that  this  company  will  only  undertake  to 
put  down  such  tracks  as  may  be  on  its  right  of  way.  If  you  wish  to 
reach  your  shaft,  therefore,  you  had  better  make  arrangements  to 
procure  rails,  spikes,  ties,  etc.,  for  the  laying  of  the  tracks  yourself. 
Another  thing  to  be  considered  will  be  the  getting  of  cars  to  and 
from  the  mine,  as  we  can  not  afford,  with  the  low  rates  that  we  get 
from  Alma  to  St.  Louis,  to  stop  trains  on  the  main  line  and  run 
engines  a  half  a  mile  from  it  to  get  loads  and  place  empties." 

And  on  November  13,  Taylor  wrote  Barnard: 

"In  regard  to  grading,  etc.,  and  side  tracks  at  my  mine  would  say 
that  the  grading,  etc.,  is  about  completed,  and  that  I  have  several 
teams  at  work  in  order  to  have  all  in  readiness.  Wish  you  would 
rush  the  matter  and  have  the  material  on  hand  at  the  time.  Hope 
you  will  use  every  effort  .to  have  the  rails,  etc.,  on  the  ground  with- 
out delay,  as  I  am  really  anxious  to  have  it  done  as  soon  as  possible, 
as  will  soon  be  to  the  coal." 


56 

To  this  Barnard  replied  November  14,  "I  have  your  letter  of  the 
13th  inst,  but  can  not  understand  what  you  mean.  I  told  you  when 
you  were  here  I  would  have  Mr.  Stevens  endeavor  to  find  out  what 
you  could  get  rails  for  and  let  you  know.  I  told  you  also  where  I 
thought  you  could  bay.  This  company  has  not  undertaken  to  pro- 
cure material  for  your  track,  and  not  only  that,  I  advised  you  about 
where  you  could  get  them  yourself,  and  I  think  Mr.  Stevens  may 
have  told  you  (I  am  not  sure  of  this) ,  where  you  could  buy  and  at 
what  price.  I  told  you  we  would  only  lay  the  track  necessary  for 
the  connection  so  much  as  run  on  the  O.  &  M.  right  of  way.  You 
can  not  have  misunderstood  this." 

Taylor  subsequently  at  his  own  expense  built  his  track,  with  some 
advice  and  help  from  the  company's  engineer.  The  track  thus  built 
extends  from  the  company's  main  track  and  at  substantially  a  right 
angle  therewith,  a  distance  of  2,800  feet  to  the  mine. 

There  was  other  correspondence  and  negotiations,  but  the  above 
suffices  to  show  the  circumstance  under  which  Mr.  Taylor's  track  was 
built,  and  the  connection  made  with  the  defendant's  road. 

About  three  miles  east  of  Taylor's  mine,  and  further  from  East  St. 
Louis,  are  the  Consumers'  and  Crowson's  mines,  both  of  which  are 
situated  practically  upon  the  right  of  way  of  defendant,  the  switches 
and  tracks  leading  to  them  being  almost,  if  not  entirely,  upon  the 
company's  right  of  way.  The  principal  point  of  the  complaint  is 
that  defendant  company  charges  from  the  Consumers'  and  Crowson's 
mines  45cts.  per  ton  freight  for  shipment  of  coal  to  East  St.  Louis, 
while  from  Taylor's  mine  it  charges  the  same  price,  45cts.  per  ton, 
and  in  addition  thereto,  one  dollar  per  car  as  a  switching  charge  for 
the  service  of  placing  empties  and  carrying  loads  from  Taylor's  mine 
to  the  main  track,  2,800  feet.  No  switching  charge  is  made  in  the 
case  of  shipments  from  the  Consumers'  and  Crowson's  mines.  The 
facts  are  not  disputed.  The  company  concedes  having  made  these 
switching  charges  on  all  of  Taylor's  shipments,  and  avows  its  pur- 
pose to  continue  them. 

Complainant  claims  this  extra  dollar  per  car  constitutes  both  an 
extortion  and  an  unjust  discrimination  under  the  statute  of  this 
State;  and  the  Commission  is  asked  to 'prosecute  the  defendant  for 
the  penalties  denounced  by  the  statute  against  these  offenses. 

So  far  as  extortion  is  concerned,  the  case  is  not  difficult.  If  the 
company  may  rightfully  make  a  switching  charge  for  the  transporta- 
tion of  cars  over  Taylor's  road,  then  the  amount  of  one  dollar  per  car, 
being  within  the  maximum  switching  charge  fixed  by  the  Commis- 
sion, can  not  be  said  to  be  extortionate.  The  real  question  is  whether 
the  company  may  rightfully  charge  at  all  for  this  service.  If  it  may 
not,  that  is  to  say,  if  for  the  present  purpose  the  track  laid  by  Taylor 
is  to  be  regarded  as  part  of  defendant's  road,  and  his  mine  is  to  be 
regarded  as  a  station  on  that  road,  as  contended,  then  the  charge  as 
to  discrimination  would  seem  to  be  made  out. 


57 

We  have  examined  the  numerous  Illinois  decisions  cited  by  com- 
plainant's counsel.  Most  of  these  arose  under  section  5,  article  13, 
of  the  constitution,  which  provides : 

"All  railroad  companies  receiving  and  transporting  grain  in  bulk  or  other- 
wise, shall  deliver  the  same  to  any  consignee  thereof,  or  any  elevator  or  pub- 
lic warehouse  to  which  it  may  be  consigned,  providing  such  consignee,  or  the 
elevator  or  public  warehouse  can  be  reached  by  any  track  owned,  leased  or 
used,  or  which  can  be  used  by  such  railroad  companies;  and  all  railroad  com- 
panies shall  permit  connections  to  be  made  with  their  tracks,  so  that  any  such 
consignee  and  any  public  warehouse,  coal  bank  or  coal  yard  may  be  reached 
by  the  cars  on  said  railroad." 

Under  the  above  provision,  the  Supreme  Court  holds  (in  language 
no  more  plain,  it  may  be  observed,  than  the  constitution  itself,)  that 
railroads  are  bound  to  deliver  cars  of  grain  at  the  particular  ware- 
house or  elevator  to  which  they  are  consigned,  if  accessible  by  any 
track  belonging  to  the  company  or  which  the  company  has  the  right 
to  use. 

Vincent  vs.  C.  &  A.  R.  R.,  49  111.  33. 
People  vs.  C.  &  A.  R.  R.,  55  111.  95. 
C.  &  N.  W.  Ry.  Co.  vs.  People,  56  111.  365. 
Hoyr  vs.  C.  B.  &  Q.,  93  111.  601. 

And  in  such  a  case  no  extra  switching  charge  for  delivering  cars 
of  grain  at  an  elevator  reached  by  such  track,  can  be  made. 

Vincent  vs.  C.  &  A.  R.  R.  Co.,  49  111.  33. 

But  the  company  would  not  be  bound  to  procure  for  that  purpose 
from  another  company,  or  person,  the  right  to  use  a  track  required 
for  such  delivery. 

People  vs.  C.  &  A.  R.  R.  Co.,  55  111,  95 

And,  it  seems,  where  the  delivery  would  occasion  great  inconven- 
ience to  the  company,  it  would  be  excused  from  such  delivery,  even 
though  having  a  right  to  use  the  necessary  tracks. 

C.  &  N.  W.  Ry.  Co.  vs.  People,  56  111.  365. 

All  of  these  cases  hold  that  any  switch  or  track  extending  from  a 
company's  main  track  to  any  such  elevator,  whether  such  track  is 
owned  or  leased  by  such  company  or  not,  if  put  there  for  the  accom- 
modation of  the  elevator,  by  some  arrangement  under  which  the  road 
can  use  it  is  to  be  regarded  as  a  part  of  the  company's  line  for  the 
purpose  of  the  delivery  of  grain. 

The  foregoing  cases,  however,  relate  solely  to  the  delivery  of  cars 
.  of  grain,  which  is  expressly  enjoined  by  the  constitution. 

With  regard  to  coal  mines,  the  constitutional  provision  quoted 
above  is,  simply,  that  the  company  "shall  permit  connection  to  be 
made  with  their  tracks,"  which  it  will  be  seen  is  essentially  different 
in  its  terms  from  the  provision  in  regard  to  grain  deliveries. 

In  a  late  case  it  was  held  that  a  railroad  company  could  not  dis- 
connect a  switch  which  had  been  laid  to  a  coal  mine  and  which  had 
for  several  years  been  used  for  making  shipments  of  coal  therefrom. 

C.  &  A.  R.  R.  Co.  v.  Suffern,  129  111.  274. 


58 

Commenting  on  the  above  constitutional  provision  in  its  relation 
to  coal  mine  connections,  the  court  says,  in  the  Suffern  case: 

"It  was  the  evident  design  of  the  constitutional  provision  above  quoted  to 
compel  the  railroads  to  furnish  the  coal  mines  in  the  State  with  all  necessary 
facilities  for  the  shipment  and  transportation  of  coal.  As  the  railroad  com- 
panies must  deliver  grain  to  all  elevators  upon  the  lines  of  their  road,  or  con- 
nected therewith  by  side  tracks,  so  also  must  they  receive  shipments  of  coal 
.from  all  coal  mines  on  the  lines  of  their  roads  or  connected  therewith  by  side 
tracks." 

The  Suffern  case  was  a  petition  for  mandamus,  and,  as  bearing 
upon  the  present  inquiry,  that  case  enlightens  us  no  further  than  to 
show  that  Taylor  has  the  undoubted  right,  under  the  foregoing 
clause  of  the  constitution,  to  have  his  track  and  mine  connected  with 
defendant's  road.  The  constitution  commands  defendant  to  "permit 
connection  to  be  made"  with  Taylor's  coal  mine.  Tbis  it  has  done. 
The  constitution  did  not  command  defendant  to  build  a  track,  ex- 
tending 2,800  feet  off  from  its  own  right  of  way,  to  reach  this  mine; 
and  this  it  refused  to  do. 

The  connection  has  been  made;  and  no  question  arises  here,  as  in 
the  Suffern  case,  as  to  any  right  of  the  company  to  sever  such  con- 
nection. It  is  not  proposing  to  sever  it.  Nor  does  any  question  arise 
here  as  to  the  right  of  defendant  to  refuse  to  receive  and  transport 
coal  from  Taylor's  mine.  It  has  not  so  refused.  What  the  company 
does  refuse  to  do  is,  to  take  empty  cars  from  the  track  to  the  mine, 
and  loaded  cars  from  the  mine  to  the  track,  2,800  feet,  unless  it  is 
paid  for  that  service  extra,  over  and  above  the  regular  freight  rate 
which  obtains  from  the  point  of  connection. 

Undoubtedly,  if  Taylor  would  arrange  to  deliver  his  coal  at  the 
right  of  way  he  could  avoid  this  charge,  and  would  then  have  the 
right  to  have  his  coal  transported  at  the  regular  rate  of  freight,  and 
no  more.  The  real  question  is,  has  he  a  right  under  the  above  quoted 
provision  of  the  constitution,  to  compel  defendant  to  operate  his 
2,800  feet  of  railway  without  compensation?  It  seems  to  the  Com- 
mission he  has  not  that  right.  If  he  may  compel  defendant  to  op- 
erate his  2,800  feet  of  road  gratis,  may  not  some  one  else  compel  it 
to  operate  a  road  a  mile,  two  miles,  or  five  miles  in  length,  gratis? 
Where  will  the  line  be  drawn? 

Does  the  declaration  of  the  court  in  the  Suffern  case,  that  this 
constitutional  injunction  was  intended  "to  compel  the  railroads  to 
furnish  the  coal  mines  in  the  State  with  all  necessary  facilities  for 
the  shipment  and  transportation  of  coal"  mean  that  the  railroads  are 
compelled  to  furnish  those  facilities  gratuitously,  long  distances  be- 
yond their  own  switches  and  tracks,  wherever  the  mine  owner  may 
build  a  track  and  tender  it?  Does  the  further  declaration  of  the  court 
in  that  case,  that  railroad  companies  "must  receive  shipments  of 
coal  fr^m  all  coal  mines  on  the  lines  of  their  roads  or  connected 
therewith  by  side  tracks"  mean  that  such  companies  must  receive 
such  shipments  at  some  distant  point  upon  a  track  built  by  others, 
or  does  it  mean  only  that  the  roads  shall  receive  such  shipments  at 
their  own  respective  rights  of  way  on  switches  or  in  yards  estab- 
lished for  the  purpose? 


59 

We  think  such  a  construction  as  is  contended  for,  would  extend 
the  constitution  far  beyond  the  cases  meant  to  be  provided  for  by  its 
framers. 

We  can  well  understand  how  a  company  might,  by  its  own  acts,  or 
by  contract,  bind  itself  to  perform  such  a  service  gratuitously.  We 
can  understand  how,  in  many  cases,  railroad  companies,  for  the  sake 
of  developing  the  coal  fields  along  their  rights  of  way,  thereby  en- 
hancing their  own  trade  and  earnings,  might  enter  into  arrangements 
with  coal  operators,  whereby  they  would  be  estopped  to  make  switch- 
ing charges,  even  in  cases  where  the  extra  service  might  be  larger 
than  is  here  demanded  of  defendant.  Doubtless  some  of  the  cases 
related  in  the  testimony  offered  by  complainant,  as  to  the  practice 
upon  other  roads  in  this  same  coal  field,  are  of  this  character.  But 
the  fact,  if  it  exists,  that  other  roads  have  made  such  arrangements, 
furnishes  no  ground  upon  which  to  predicate  a  rule  of  law  which 
will  bind  defendant.  It  may  be,  if  it  were  shown  that  this  same 
company  was  accustomed  to  perform  a  like-  service  for  other  mine 
owners  on  its  line,  and  competing  in  this  field,  without  charging  for 
it,  that  fact  would  furnish  a  basis  for  a  prosecution  for  discrimina- 
tion. But  the  other  mines,  whose  shipments  have  been  compared 
with  complainant's  for  the  purpose  of  making  out  the  discrimination, 
are  located  immediately  upon  defendant's  right  of  way.  It  performs 
no  switching  service  for  those  companies,  so  far  as  the  evidence  dis- 
closes. 

In  the  case  of  complainant,  it  can  not  with  justice  be  claimed  in 
the  light  of  the  evidence,  as  was  claimed  by  the  petition,  that  de- 
fendant either  promised  complainant,  or  by  its  acts  induced  him  to 
believe  that  it  would  operate  his  track  without  charge.  He  was 
plainly  told  by  letter,  as  he  admits,  and  in  conversation,  as  President 
Barnard  testifies,  that  he  must  pay  for  this  service,  and  that  too  be- 
fore his  track  was  laid,  or  any  considerable  work  had  been  done  upon 
his  mine. 

While  we  realize  fully  the  disadvantage  under  which  complainant 
labors  in  the  present  state  of  competition  felt  in  the  coal  trade,  we 
are  not  convinced  that  the  law  affords  any  remedy,  and  greatly  fear 
that  a  prosecution  for  either  extortion  for  discrimination  would  fail. 

The  petition  will  therefore  be  dismissed. 
SPRINGFIELD,  ILL.,  September  20,  1890. 


BEFORE  THE 


Railroad  and  Warehouse  Commission 


COMPLAINT  No.  64. 


UNION  BREWING  COMPANY,  OP  PEORIA,  Complainant. 


vs. 


THE  CHICAGO,  BURLINGTON,  &  QUINCY  R.  R.  Co.,  Respondent. 


REFUSAL  TO  SWITCH  CARS. 


Filed  Aug.  27,  1890.— Hearing  at  Chicago,  Oct.  4,  1890.— 
Decision  Rendered  Dec.  10,  1890. 


OPINION  OF  COMMISSION. 


OPINION  BY  PHILLIPS,  COMMISSIONER. 

This  is  a  complaint  by  the  Union  Brewing  Co.,  a  corporation,  of 
Peoria,  111.,  against  the  C.,  B.  &  Q.  R.  R.  Co.,  alleging  a  refusal  to 
switch  cars. 

Switching  has  been  defined  by  the  Commission  to  be,  "the  hauling 
of  loaded  cars  from  the  station  yards,  side  tracks,  elevators  or  ware- 
houses to  the  junctions  of  other  railroads  when  not  billed  from  sta- 
tions on  its  own  road  to  said  junctions,  and  from  junctions  of  other 
railroads  to  the  stations,  side  tracks,  elevators  and  warehouses  situa- 
ted on  the  tracks  owned  or  controlled  by  the  railroad  company  doing 
said  switching.  In  other  words,  switching  is  that  transfer  charge  or- 
dinarily made  for  moving  loaded  cars  for  short  distances  for  which 
no  regular  way  bill  is  made,  and  which  do  not  move  between  two 
regularly  established  stations  on  the  same  road." 

'  A  particular  car  loaded  with  "cerealine"  and  billed  to  complainant, 
was  transported  to  Peoria  by  the  C.,  C.,  C.  &  St.  L.  Ry.  Co.,  and  was 
either  by  the  carrying  company,  or  an  intervening  company  delivered 
to  respondent,  and  marked  for  "Carson's  track."  Carson's  track  is  a 
team  track  of  respondent,  one  block  from  complainant's  brewery,  on 
which  complainant  was  accustomed  to  receive  its  cars  of  freight. 
Respondent  after  receiving  this  car  in  fact  switched  it  to  Carson's 
track,  not  knowing  it  was  for  the  complainant;  but,  upon  learning 
whose  car  it  was,  the  agent  of  respondent  ordered  it  taken  away ;  and 
it  was  then  placed  upon  a  team  track  of  the  P.  &  P.  U.  road,  in  a 
place  considerably  further  from  the  brewery,  and  much  less  conven- 
ient for  complainant,  where  it  was  finally  unloaded. 

Respondent  declined  to  switch  this  car  to  Carson's  track  (or  rather 
to  leave  it  there  after  inadvertently  switching  it,)  and  declines  gen- 
erally to  switch  any  cars  for  complainant,  because  of  a  controversy 
arising  between  them  as  to  the  payment  of  certain  car-service 
charges,  levied  through  the  Car  Service  Association  of  Peoria,  for 
the  detention  of  two  cars  which  had  been  previously  switched  by  re- 
spondent to  Carson's  track  for  complainant;  which  two  cars  last 
mentioned  had  not  been  unloaded  by  complainant  within  forty-eight 
hours  after  arrival,  which  is  the  time  allowed  free  of  charge  by  the 
rules  of  the  Car  Service  Association. 


64 

The  Car  Service  Association  is  composed  of  the  several  roads  doing 
business  in  Peoria.  Its  object  is  to  prevent  the  unreasonable  deten- 
tion of  cars  by  consignees;  and  under  its  rules  a  charge  of  one  dollar 
per  day  is  made  against  any  consignee  for  each  day  he  fails  to  un- 
load a  car,  after  the  expiration  of  forty-eight  hours  from  the  time 
such  car  is  set  by  the  railroad  company  in  a  proper  place  for  un- 
loading. 

In  the  case  of  the  two  cars  upon  which  the  unpaid  car-service 
charges  were  made,  the  brewing  company  claims  that  the  railroad 
company  was  at  fault  in  failing  to  give  notice  of  arrival.  It  also 
claims  that  the  charge  of  one  dollar  per  day. is  unreasonable  in 
amount.  The  respondent,  upon  the  other  hand,  claims  it  was  not  its 
duty  to  give  complainant  notice  of  the  arrival  of  these  cars,  that  be- 
ing the  duty  of  the  company  transporting  them  to  Peoria,  a  duty 
which  in  this  case  respondent  further  insists  was  in  fact  performed 
by  the  C.,  C.,  C.  &  St.  L.  Ry.  Co.  Respondent  further  claims  that 
the  two  cars  named  were  placed  in  plain  view  of  the  brewery  and 
only  a  block  away,  and  that  complainant  in  fact  knew  the  cars  were 
there  in  time  to  have  unloaded  them  within  the  forty-eight  hours,  if 
its  agents  had  seen  fit;  and  it  urges  further  that  these  car-service 
charges  of  one  dollar  per  day  for  detaining  cars  are  proper  and  rea- 
sonable, and  that  they  are  in  the  true  interest  of  shippers,  since  they 
prevent  the  rolling  stock  of  railroads  from  being  tied  up  to  the  great 
disadvantage  of  those  shippers  who,  for  that  reason,  often  can  not  get 
cars. 

We  thus  state  the  controversy  as  to  these  car-service  charges,  not 
for  the  purpose  of  deciding  it,  but  rather  as  a  help  to  arrive  at  what 
we  deem  the  real  question  before  us  We  content  ourselves  with  the 
single  observation  that  since  the  statute  of  this  State  (Sec.  5,  Act 
"Receiving,  Carrying  and  Delivering  Grain,")  provides  that  a  con- 
signee of  grain  transported  in  bulk  "shall  have  twenty-four  hours, 
free  of  expense,  after  actual  notice  of  arrival,  etc.,  in  which  to  re- 
move the  same  from  the  cars  of  such  railroad  corporation,"  there 
would  seem  to  be  an  implied  right  under  the  statute  to  charge  for  a 
longer  detention  than  the  twenty-four  hours  which  the  statute  names. 
Indeed,  no  reason  is  perceived  in  law  or  justice  why  an  unreasonable 
and  unnecessary  detention  of  cars  by  consignees  should  not  be  paid 
for;  and  the  Car  Service  Association  seems  from  the  proof  before  us 
to  be  only  an  agency  established  to  keep  account  of  claims  so  aris- 
ing, and  enforce  them.  The  charges  so  made  would  have  to  be  rea- 
sonable, under  all  the  circumstances.  The  statute  does  not  seem  to 
refer  the  matter  of  fixing  the  maximum  of  such  demurrage  charges 
to  this  Commission;  and  the  question  probably  did  not  occur  to  the 
law  makers.  Car  demurrage  is  an  important  subject,  which  has 
arisen,  in  a  practical  way,  only  within  late  years,  and  long  after  our 
statute  for  the  regulation  of  railroads  was  passed.  It  does  not,  how- 
ever, follow  that,  because  there  is  no  statutory  regulation  of  the 
question,  there  is  no  law.  The  charge,  as  before  observed,  must  be 
reasonable;  and  what  is  reasonable  in  a  given  case  must  depend  upon 
the  facts  of  that  case,  and  be  arrived  at,  if  the  parties  can  not  them- 
selves agree,  by  a  judicial  determination,  in  a  court  competent  to  try 


65 

the  question.  Whether  or  not  the  seven  dollar  cer-service  or  demur- 
rage charge  made  for  the  detention  of  the  two  cars  in  question  is 
reasonable,  under  all  the  circumstances,  can  only  be  determined 
authoritatively  and  judicially,  when  the  parties  carry  the  case  into 
court.  Not  being  a  court  for  any  such  purpose,  this  Commission 
can  not  determine  it. 

We  do  not  even  assume  to  decide  that  "cerealine"  is  "grain" 
within  the  meaning  of  the  statute  above  cited.  The  nature  of  the 
article  has  not  been  very  fully  explained.  It  is  a  product  of  corn,  the 
hull  and  germ  being  removed,  and  is  used  as  a  part  substitute  for 
malt.  We  have  assumed  it  to  be  "grain"  in  the  observations  above 
made. 

Respondent  does  not  deny  the  refusal  to  switch  cars,  but  expressly 
avows  it;  and  the  important  question  is,  has  the  railroad  company 
shown  a  state  of  facts  which  will  excuse  it  from  switching  cars  for 
complainant  to  Carson's  track?  In  justification  of  its  refusal  the 
railroad  company  alleges  two  grounds,  which  may  be  stated  in  the 
language  of  its  own  answer,  as  follows: 

1.  "This  company  further  states,  that  it  does  not  do  or  hold  itself 
open  to  do,  a  general  switching  business  in  the  city  of  Peoria,  but 
states  that  the  service  heretofore  rendered  to  the  said  Union  Brew- 
ing Co.,  in  so  switching  these  cars,  was  done  for  tho  accommodation 
of  said  Union  Brewing  Co.,  and  are  not  such  services  as  this  com- 
pany is  compelled  by  law  to  perform  " 

2  "This  company  further  denies  that  the  railroad  companies, 
centering  in  Peoria,  and  forming  such  association,  have  violated  any 
law  of  the  State  of  Illinois;  and  it  asserts  that  the  rules  and  regula- 
tions of  said  association  are  reasonable  and  lawful,  and  for  the  public 
good,  and  necessary  for  the  protection  of  said  railroad  companies; 
and  it  further  asserts  that  the  charges  herein  complained  of  are  just, 
reasonable  and  lawful,  *  *  *  and  that  in  refusing  to  switch  the 
cars  of  the  said  Union  Brewing  Co  ,  shipped  over  foreign  lines,  until 
said  just  and  reasonable  charges,  heretofore  exacted,  are  paid,  it  has 
acted  in  accordance  with  the  law." 

The  first  ground  stated  seems  to  imply,  that  unless  a  railroad  com- 
pany holds  itself  out  to  do  "a  general  switching  business, "it  is  under 
no  legal  obligation  to  switchj  cars.  On  this  we  observe  that  if  re- 
spondent were  confining  itself  strictly  to  handling  only  such  cars  at 
Peoria  as  it  transports  thither  upon  its  own  line,  and  if  "Carson's 
track  were  a  track  used  by  it  exclusively  for  the  accommodation  of 
its  patrons,  who  ship  cars  to  Peoria  over  its  own  line,  the  case  would 
stand  on  a  basis  entirely  different  from  that  presented  by  the  evi- 
dence. Then  the  question  would  be  presented  whether  or  not  the 
switching  of  cars  from  one  point  to  another  within  the  same  city, 
for  which  no  way  bill  is  made,  is  a  service  by  law  demandable  from 
a  railway  company  which  does  not  ordinarily  do  a  switching  busi- 
ness. 

—5  O 


66 

If  this  were  in  fact  the  case  before  us,  we  should  hesitate  before 
holding  that  a  switching  service  can  in  no  case  be  legally  demanded 
of  a  railroad  company  unless  such  company  does  a  general  switching 
business.  The  principle  upon  which  a  distinction  would  be  made, 
between  the  obligation  to  haul  one  mile,  and  the  obligation  to  haul 
ten,  is  very  difficult  to  perceive;  and  the  interests  of  a  patron  might 
become  as  vitally  involved  in  the  one  service  as  in  the  other.  If  one 
wishes  a  switching  service  only,  and  is  willing  to  pay  for  it,  why  can 
he  not  command  the  service? 

It  is,  however,  unnecessary  here  to  decide  any  such  question.  The 
evidence  amply  shows  that  the  respondent  is  accustomed  to  switch 
cars  at  Peoria  in  case  of  shipments  not  originating  on  its  own  line. 
It  has  numerous  patrons  for  whom  it  switches  cars,  turned  over  by 
other  roads,  and  switches  them,  too,  to  the  particular  track  known  as 
"Carson's  track."  Receipted  bills  of  respondent  issued  from  its 
"Switching  Department,"  showing  the  switching  of  seventy-one  such 
cars  at  one  dollar  each,  switching  charge,  have  been  filed  by  com- 
plainant in  this  case.  Moreover  the  company  did  in  fact  switch  the 
car  in  question,  supposing  it  to  be  the  car  of  another  patron,  but  re- 
moved it  upon  learning  it  was  for  complainant.  The  fact  that  respond- 
ent does  switching  in  the  city  of  Peoria  is  really  not  denied.  What 
is  denied  is  that  it  does  "a  general  switching  business." 

The  question,  therefore,  is  not  whether  a  road  which  does  no 
switching  can  by  law  be  made  to  switch  cars,  but  whether  a  road  may 
switch  for  some,  and  refuse  to  switch  for  others;  whether  it  may  ac- 
commodate some  patrons  upon  a  convenient  track  and  arbitrarily  ex- 
clude others  from  the  same  privilege,  making  them  go  for  their  goods 
to  another  track  less  convenient. 

We  believe  the  position  of  respondent  upon  this  question  is  wholly 
untenable.  The  principle  of  law  is  fundamental  that  railroads  must 
treat  all  alike.  They  must  accommodate  all  that  apply  in  the  order 
of  their  applications,  extending  favors  to  none,  and  excluding  none 
from  equal  participation  in  the  use  of  their  facilities.  They  perform 
a  public  calling  to  be  exercised  impartially  for  every  member  of  the 
public  they  were  created  to  serve. 

These  principles  have  been  so  often  and  so  universally  held  by  all 
courts  of  the  common  law  that  we  deem  a  citation  of  authorities  un- 
necessary. Indeed,  nothing  could  be  more  dangerous  in  practice 
than  to  allow  the  railroads  which  wield  such  powerful  instrumentali- 
ties, on  the  use  of  which  the  welfare  of  every  citizen  more  or  less  de- 
pends, to  choose  for  themselves  whom  they  will  serve.  Armed  with 
such  a  power  the  railroads  of  the  land  could  build  up  or  destroy  at 
will  both  private  fortunes  or  communities. 

We  therefore  are  of  opinion  that  since  respondent  switches  cars  at 
Peoria  for  some  of  its  patrons  U  is  under  a  legal  obligation  to  switch 
impartially  for  all  who  apply,  and  who  tender  its  reasonable  charges. 
We  hold,  when  respondent  switched  cars  for  complainant  to  Carson's 
track,  it  performed,  not  a  mere  "accommodation,"  but  a  legal  duty. 


67 

The  second  ground  alleged  for  refusal  to  perform  this  switching 
service  remains  to  be  considered;  namely,  the  refusal  of  complainant 
to  pay  the  charges  for  detention  of  the  two  former  cars.  As  before 
remarked  we  can  not  decide  this  controversy.  We  are  of  opinion, 
however,  that  whether  this  particular  charge  be  legally  collectible  or 
not,  its  non-payment  can  not  justify  a  refusal  to  switch  cars  for  com- 
plainant. When  complainant  demands  of  the  Burlington  company  a 
service  such  as  it  performs  in  Peoria  for  others,  tendering  it  its 
reasonable  charges,  that  company  can  not  excuse  itself  from  exer- 
cising its  legal  functions  because  of  an  unsettled  controverted  ac- 
count, arising  out  of  a  wholly  different  transaction.  If  complainant 
owes  it  for  unreasonably  detaining  cars,  the  courts  are  open  to  it. 
The  account  must  there  be  ultimately  settled.  The  railroad  company 
can  not,  in  our  view,  determine  this  question  for  itself,  or  hold  its 
switching  facilities  in  the  city  of  Peoria  as  a  mere  "accommodation" 
by  the  optional  use  of  which  it  can  compel  payment  of  a  past  dis- 
puted claim.  This  unsettled  claim,  it  will  be  observed,  is  not  for  a 
switching  service,  but  for  another  thing — the  detention  of  cars.  It 
could  not  be  known  in  advance  that  further  car-service  charges 
would  accrue  upon  the  cars  respondent  has  been  refusing  to  handle 
for  complainant. 

We  are  of  opinion  that  respondent  is  not  released  from  the  legal 
duty  of  switching,  by  the  failure  of  complainant  to  pay  demurrage 
damages. 

The  only  question  now  remaining  concerns  the  remedy.  The  act 
creating  this  Commission  provides: 

"Said  Commissioners  shall  examine  into  the  condition  and  management, 
and  all  other  matters  concerning  the  business  of  railroads  and  warehouses  in 
this  State,  so  far  as  the  same  pertain  to  the  relation  of  such  roads  and  ware- 
houses to  the  public,  and  to  the  accommoeation  and  security  of  persons  doing 
business  therewith.  *  *  *  And  whenever  it  shall  come  to  their  knowledge 
either  upon  complaint  or  otherwise,  or  they  shall  have  reason  to  believe  that 
any  such  law  or  laws  have  been,  or  are  being  violated,  they  shall  prosecute, 
or  cause  to  be  prosecuted,  all  corporations  or  persons  guilty  of  such  violo- 
lation." 

In  Section  17  of  the  same  act  it  is  provided: 

"It  shall  be  the  duty  of  the  Attorney  General  and  the  State's  attorney  in 
every  circuit  or  county,  on  the  request  of  said  Commissioners,  to  institute 
and  prosecute  any  and  all  suits  and  proceedings  which  they,  or  either  of 
them,  shall  be  directed  by  said  Commissioners  to  institute  and  prosecute  for 
a  violation  of  this  act,  or  any  law  of  this  State  concerning  railroad  companies 
or  warehouses,"  etc. 

Section  18  further  provides  as  follows: 

All  such  prosecutions  shall  be  in  the  name  of  the  People  of  the  State  of 
Illinois,  and  all  monies  arising  therefrom  shall  be  paid  into  the  State  treasury 
by  the  sheriff  or  other  officer  collecting  the  same,"  etc. 

The  act  upon  "extortion  and  unjust  discrimination"  further  pro- 
vides that  the  Commission  shall  enforce  that  act  and  "cause  suits  to 
be  commenced  and  prosecuted  against  any  railroad  corporation  which 
may  violate  the  provisions  of  this  act."  It  further  provides  in  what 
counties  of  the  State  prosecutions  may  be  begun,  authorizes  the 


68 

Commission  to  employ  counsel  "to  assist  the  Attorney  General,"  if 
they  think  it  necessary,  and  says  that  no  such  suit  shall  be  dismissed 
unless  the  Commission  and  the  Attorney  General  both  consent 
thereto. 

From  the  above  provisions  it  seems  evident  that  the  "prosecutions'r 
which  it  is  incumbent  upon  this  Commission  to  institute  and  conduct 
are  prosecutions  for  those  penalties  denounced  by  the  statute  against 
railroad  companies  for  violation  of  the  several  provisions  of  the  rail- 
road and  warehouse  law.  It  was  evidently  not  intended  that  the 
Commission  should  carry  on  any  man's  private  suit  at  public  expense. 
A  writ  of  mandamus  to  compel  the  switching  of  cars  for  complainant, 
while  running  in  the  name  of  the  people,  would,  in  fact,  be  the  pri- 
vate suit  of  complainant.  It  would  not  be  a  "prosecution"  in  the 
sense  that  term  is  used  in  the  statute.  The  statute  fixes  no  tine  or 
penalty  for  refusal  to  switch  cars.  The  party  damaged  by  such  re- 
fusal could  no  doubt  recover  his  damages;  but  this,  too,  would  be  his 
private  action  and  not  a  public  prosecution.  The  courts  are  open  to 
complainant  to  prosecute  its  suit  for  itself.  The  intention  to  confine 
this  Commission  to  those  prosecutions  in  the  name  of  the  people  for 
penalties  or  the  prosecution  of  such  suits  as  affect  the  public  gener- 
ally, or  large  communities  of  people,  is  also  pointed  to  by  the  fact 
that  the  act  concerning  unjust  discrimination  expressly  provides  for 
private  suit  by  the  person  discriminated  against  wherein  he  may  re- 
cover treble  damages  and  his  attorney's  fees. 

Inasmuch  as  the  parties  had  placed  this  case  before  us  at  some 
length,  we  have  not  hesitated,  under  the  injunction  of  the  statute 
that  we  shall  "examine  into  the  condition  and  management,  and  all 
other  matters  concerning  the  business  of  railroads  and  warehouses 
in  this  State,"  etc.,  to  thus  express  our  views  of  the  law  for  the  guid- 
ance of  those  who  may  be  affected  by  them,  or  may  have  confidence 
to  follow  them;  and  we  hope  the  matter  may  be  now  ad  justed  bet  ween 
the  parties  without  resort  to  judicial  determination  of  the  question, 
which,  not  being  a  court  in  the  proper  sense,  we  are  not  authorized 
to  make. 

SPRINGFIELD,  Illinois,  Dec,  10,  1890. 


BEFORE  THE 


STHTE  OF  ILLINOIS, 


COMPLAINT    No,    71, 


LYON  &  SCOTT,  Complainants. 


vs. 


PBORIA  &  PEKIN  UNION  RY.  Co.  AND  THE  ILLINOIS   CAB  SERVICE 
ASSOCIATION  OF  PEORIA,  Respondents. 


REFUSAL  TO  SWITCH  CABS. 


Filed  November  25,  1890. — Decision  Rendered  Dec.  10, 1890. 


71 


OPINION  OF  COMMISSION. 


OPINION  BY  PHILLIPS,  COMMISSIONER. 

This  complaint  raises  practically  the  same  questions  which  are  dis- 
cussed in  the  opinion  of  the  Commission  in  thecomplaint  of  the  Union 
Brewing  Co.,  v.  The  C.,  B.  &  Q.  R.  R.  Co.  and  we  need  do  little  more 
than  refer  the  parties  to  the  ruling  in  that  case.  No  evidence  has 
been  heard,  but  the  conceded  facts  show  that  an  unpaid  car-service 
charge,  concerning  the  justice  of  which  there  is  a  controversy,  has 
been  the  principle  cause  of  the  refusal  to  switch  cars.  One  matter  is 
rather  indirectly  stated  in  the  answer  of  the  P.  &  P.  U.  Ry.  Co., 
which  might,  if  proved,  take  the  case  out  of  the  principle.  It  is  said 
the  team  track  opposite  blocks  6  and  7  where  Lyon  &  Scott  demand 
to  have  their  coal  cars  placed  is  a  "merchandise  track,"  and  that  Lyon 
&  Scott  insist  upon  having  their  coal  cars  placed  upon  this  merchan- 
dise track  for  unloading.  It  is  not  precisely  averred  that  this  track 
is  held  by  the  company  exclusively  for  merchandise.  We  can  under- 
stand how,  under  some  circumstances,  it  might  be  highly  proper  for 
a  company  to  establish  one  track  for  coal  and  another  for  merchan- 
dise, and  if  the  coal  track  were  suitable  and  proper  for  that  commod- 
ity a  coal  merchant  could  not  demand  to  have  his  coal  cars  put  upon 
a  track  properly  set  apart  for  a  different  business.  But  the  principle 
stated  in  the  Union  Brewing  Co.'s  case,  that  the  railroad  company 
must  treat  all  alike  would  here  apply  with  its  entire  force.  Special 
favors  could  not  be  arbitrarily  extended.  If  a  suitable  and  proper 
track  for  coal  cars  is  offered  complainants  where  other  coal  merchants 
are  accommodated,  and  the  company  is  ready  and  willing  to  switch 
the  cars  there,  then  the  refusal  to  pay  the  car-service  charges  would 
make  no  figure  in  the  case.  Respondent  has  in  that  case  simply  done 
its  duty  and  is  not  in  default. 

The  P.  &  P.  U.  states  in  its  answer,  that  the  delay  in  transporting 
the  cars  of  coal  which  Lyon  &  Scott  sets  up  as  a  reason  for  refusing 
to  pay  the  car- service  charges,  (alleging  that  two  or  three  clays  busi- 
ness was  by  the  fault  of  the  carrier  thrown  upon  them  at  once),  was 
not  the  fault  of  the  P.  &  P.  U.  Company  which  only  switched  the 
cars,  but  was,  if  anybody's,  the  fault  of  the  carrying  company.  If 
this  can  be  established,  then  it  will  show  Lyon  &  Scott  must  look 
for  their  damages  for  delaying  their  cars  to  the  company  at  fault,  and 
that  they  can  not  set  it  off  against  a  car-service  charge  of  the  P.  &  P. 
U.  Company  otherwise  just  and  proper.  But  all  this  is  matter  for 


72 

proof  in  a  court  of  justice.  As  observed  in  the  Union  Brewing  Co.'s 
case,  we  can  not  settle  a  controversy  of  this  kind.  The  parties  must 
have  their  rights  adjudicated,  if  they  can  not  agree  between  them- 
selves. 

Here,  as  in  the  case  of  the  Union  Brewing  Company,  the  remedy, 
if  one  exists,  must  be  sought  by  complainants  in  their  own  private 
suit  in  mandamus,  or  by  a  proceeding  in  chancery  for  a  mandatory 
injunction. 

SPRINGFIELD,  ILLINOIS,  Dec.  10,  1890. 


BEFORE  THE 


OF  THE 


STHTE  OF  ILLINOIS. 


COMPLAINT  No.  42. 


J.  H.  LINNEMAN  &  Co.,  Complainants. 


vs. 


THE  ILLINOIS  CENTRAL  R.  R.  Co.,  Respondent. 


UNJUST  DISCRIMINATION. 


Filed  Oct.  8,  1889. — Hearing  at  Chicago,  and  Dismissed  at  request  of  Complain- 
ants, Jan.  3,  1890. — Reinstated  at  Bequest  oj  Complainants, 
Oct.  4,  1890. — Hearing  at  Chicago,  Oct.  24, 
1890. — Decision  Rendered  Dec- 
ember 11,  1890. 


75 


OPINION  OF  COMMISSION. 


OPINION   BY  PHILLIPS,  COMMISSIONER. 

J.  H.  Linneman  &  Co.,  a  firm  doing  business  at  Flanagan,  Liv- 
ingston County,  111.,  complain  that  the  Illinois  Central  R.  R.  Co., 
has  discriminated  against  them  in  freight  charges  from  Chicago,  in 
in  that  said  railroad  company  has,  it  is  claimed,  charged  complain- 
ants more  for  the  same  class  and  quantity  of  freight  from  Chicago 
to  Flanagan,  than  was  at  the  same  time  charged  for  the  like  freight 
from  Chicago  to  Minonk,  Minonk  being  the  greater  distance  by 
about  13  miles,  and  the  Minonk  shipments  passing  through  Flana- 
gan on  the  same  line  of  road. 

Minonk  is  a  competing  point.being  reached  from  Chicago  by  a  line  of 
the  Santa  Fe"  road,  and  by  two  lines  of  the  Illinois  Central.  One  Illinois 
Central  line  reaches  Chicago  from  Minonk  by  way  of  Mendota,  run- 
ning in  connection  with  the  C.  B.  &  Q.;  while  the  other  goes  by  way 
of  Kankakee  and  is  owned  continuously  to  Chicago  by  the  Illinois 
Central  company.  The  Kankakee  line  is  the  one  on  which  the  town 
of  Flanagan  is  situated,  between  Chicago  and  Minonk. 

The  Santa  F6  line  which  passes  through  Minonk,  reaches  in  its 
farther  southward  progress  Pekin  and  Peoria,  where  there  is  water 
competition,  and  it  is  insisted  by  respondent  that  such  water  compe- 
tition has  resulted  in  compelling  the  Santa  Fe"  company  to  fix  a  rate 
at  Minonk  which  is  unreasonably  low,  the  Santa  F6  being  unable, 
under  the  law,  to  make  a  higher  rate  at  Minonk  than  its  through 
rate.  Respondent,  however,  shows  that  while  its  rate  to  Flanagan 
from  Chicago  is  in  fact  slightly  higher  than  to  Minonk,  it  has  not 
been  the  intention  to  ship  any  of  the  Minonk  goods  by  the  Kankakee 
line  and  through  Flanagan;  that  if  any  such  shipments  were  so  sent, 
it  was  done  inadvertently  and  against  orders;  and  respondent  wholly 
disclaims  any  purpose  to  violate  the  law  by  hauling,  for  less  freight, 
a  longer  distance,  in  the  same  direction,  over  the  same  line. 

While  the  proof  is  not  specific  or  clear,  we  think  it  probable,  that 
some  of  these  shipments  to  Minonk  were  hauled  through  Flanagan; 
and  this,  if  proved,  would  be  a  violation  of  the  Illinois  statute  pro- 
hibiting unjust  discrimination.  Competition  at  a  point  is  by  our 
statute  expressly  excluded  from  the  class  of  facts  which  our  courts 
have  said  might  be  alleged  to  show  a  discrimination  to  be  not  "un- 
just." If  there  is  competition  at  the  end  of  the  line,  our  statute  gives 
all  intermediate  stations  the  benefit  of  it.  In  this  ous  statute  directly 
differs  from  the  Inter-State  Commerce  act,  which  empowers  the  Na- 


76 

tional  Commission  to  allow  a  less  charge  for  a  greater  distance  where 
there  is  competition,  if  they  deem  it  just  and  proper.  This  Commis- 
sion is  without  any  such  power.  To  haul  a  like  quantity  of  freight 
to  Minonk  from  Chicago  for  a  less  rate  than  to  Flanagan,  a  less  dis- 
tance, over  the  same  line  of  road  in  the  same  direction,  is  a  violation 
of  our  statute. 

We  do  not,  however,  think  the  public  good  requires  that  re- 
spondent be  prosecuted  for  the  penalty  denounced  by  the  statute.  As 
we  before  said,  the  proof  already  produced  is  not  clear,  and  better 
and  more  conclusive  proof  would  need  to  be  found  before  instituting 
suit.  The  statute  being  penal  would  be  strictly  construed.  The  exact 
case  stated  in  the  statute  would  have  to  be  proved  in  order  to  re- 
cover the  penalty.  We  are  not  satisfied  from  the  proof  produced  that 
a  prosecution  would  succeed  under  the  construction  given  this  act 
by  our  courts. 

C.  B.  &  Q.  vs.  People,  11  111.  443. 

Karikdkee  Coal  Co.  vs.  Illinois  Central  R.  R.  Co.,  17  App, 
6U. 

But  even  if  specific  proof  were  forthcoming,  in  view  of  the  show- 
ing made  that  respondent's  general  freight  agent  had  given  orders  to 
ship  to  Minonk  only  by  the  Mendota  line,  and  in  view  of  the  further 
fact  that  respondent  gives  the  Commission  positive  assurance  that 
care  will  be  taken  to  observe  the  statute  in  future,  it  is  decided  to  in- 
stitute no  suit  for  the  penalty,  unless  there  shall  be  future  viola- 
tions. 

Complainants  have  filed  with  us  a  bill  of  many  items  for  over- 
charges of  freights  by  respondent,  presumably  with  a  view  to  our 
assisting  in  the  collection  of  this  private  bill.  This  we  can  not  do. 
Our  function  is  to  prosecute  for  fines  and  penalties  where  we  believe 
the  public  welfare  demands  it.  The  courts  are  open  to  complainants 
for  the  collection  of  such  overcharges  as  they  can  prove.  The  stat- 
ute concerning  "Extortion  and  Unjust  Discrimination"  expressly 
provides  (Sec.  6),  that  any  private  individual  who  may  be  damaged, 
through  a  violation  of  the  statute,  as  to  discrimination,  may  recover, 
in  a  civil  suit,  three  times  the  amount  of  all  his  damages,  together 
with  his  reasonable  counsel  fees  to  be  taxed  as  costs.  The  remedy 
of  complainants  is  thus  made  very  ample  for  their  private  injury,  if 
they  are  able  to  show  one;  and  this  Commission  is  not  the  proper 
forum  for  that  part  of  this  complaint  which  embraces  this  private 
claim  for  damages. 

SPRINGFIELD,  ILLINOIS,  Dec.  11,  1899. 


BEFORE  THE 


STATE    OF    ILLINOIS 


ST.  Louis  &  EASTERN  RAILWAY  Co., 

PETITIONER. 


VS. 


TOLEDO,  ST.  Louis  &  KANSAS  CITY  RAILROAD  Co., 

RESPONDENT. 


PETITION    FOB    LEAVE     TO     CROSS. 


79 


OPINION  OF  COMMISSION. 


OPINION   BY   PHILLIPS,  COMMMISSIONER. 

This  is  an  application  of  the  St.  Louis  &  Eastern  Railway  Company 
for  leave  to  cross  with  its  proposed  track  the  track  of  the  Toledo,  St. 
Louis  &  Kansas  City  Railroad  Company  at  a  point  about  three- 
quarters  of  a  mile  east  of  the  station  called  Peters,  in  Madison  County, 
Illinois.  Respondent  resists,  alleging  that  a  crossing  at  the  point 
proposed  by  petitioner  will  "unnecessarily  impede  and  endanger  the 
travel  and  transportation"  upon  respondent's  road. 

Respondent,  however,  offers  to  allow  a  crossing  at  the  point  pro- 
posed, provided  petitioner  will  at  its  own  expense  set  up  and  main- 
tain interlocking  at  such  crossing;  or  it  offers  to  permit  petitioner  to 
cross  without  interlocking  at  a  point  a  little  over  a  half  mile  further 
west  than  the  place  proposed.  Petitioner  declines  both  these  offers 
and  insists  upon  the  crossing  proposed  without  interlocking. 

Respondent  alleges  in  its  answer  "that  the  proposed  crossing  is  at 
the  foot  of  a  working  grade  of  from  thirty-five  to  forty  feet  to  the  mile; 
that  result  of  such  crossing  will  be  to  compel  all  trains  upon  the 
Toledo,  St.  Louis  &  Kansas  City  Railroad  to  stop  at  the  foot  of  such 
grade,  and  thereby  lose  the  momentum  necessary  to  carry  trains 
of  ordinary  size  over  such  grade;"  that  a  crossing  at  this  point  will 
necessitate  diminishing  thejtrain  load  on  respondent's  road  by  several 
cars,  thus  increasing  the  expense  of  operation,  as  wellasdelayingand 
interfering  with  traffic;  and  that  its  management  has  already  decided 
upon  a  change  of  grade  at  the  proposed  point  of  crossing,  rendered 
necessary  in  the  economical  operation  of  its  road,  which  road,  it  is 
alleged,  is  in  the  course  of  being  reconstructed,  this  grade  being 
among  the  last  to  be  changed. 

The  evidence  on  which  we  are  asked  by  petitioner  to  order  this 
crossing  is  meagre  and  unsatisfactory.  Two  witnesses  testified  for 
complainant,  stating  in  terms  (without  objection)  that  a  crossing  at 
the  point  proposed  "would  not  unnecessarily  impede  or  endanger  the 
travel  and  transportation  upon  respondent's  road,"  and  this  general 
conclusion  was,  in  a  manner,  supported  by  further  expert  theoretical 
testimony  given  by  the  same  witnesses. 

The  testimony  does  not  inform  us  as  to  the  actual  state  of  traffic 
on  respondent's  road,  how  many  and  what  kind  and  weight  of  trains 
it  runs,  or  any  other  of  the  many  specific  facts  which  might  readily 


80 

have  been  made  the  subject  of  observation  and  have  been  put  before 
the  Commission.  Neither  did  any  witness  who  had  had  actual  ex- 
perience in  handling  engines,  or  in  hauling  trains  over  grades  of  this 
kind,  testify  before  us.  We  confess  to  some  prejudice  in  favor  of 
the  notion  that  the  best  way  to  prove  how  the  running  of  freight 
trains  is  affected  by  the  grade  at  the  point  of  proposed  crossing,  and 
what  freight  locomotives  can  haul  there,  and  what  speed  and  "mo- 
mentum" must  be  acquired  at  that  point  to  insure  the  ascent  of  the 
grade  eastward,  would  be  to  show  what  is  actually  done  by  the  freight 
trains  that  daily  pass  this  point  and  ascend  this  grade.  No  evidence 
on  this  line  was  offered. 

The  expert  testimony  offered  by  complainant  was  controverted  by 
the  chief  engineer  of  respondent,  whose  testimony  substantially  and 
very  plausibly  supports  the  objections  to  this  crossing  stated  in  the 
answer  of  respondent. 

The  petitioner  held  the  burden  of  proof  and  ought  to  have  made 
clear,  by  a  preponderance  of  the  evidence,  the  fact  that  this  crossing 
will  not  unnecessarily  impede  and  endanger  respondent's  traffic. 
This  could  not  be  done  by  witnesses  swearing  to  that  conclusion  in 
terms  as  they  did.  The  general  conclusion  as  to  the  propriety  of  the 
crossing  is  for  the  Commission,  not  for  witnesses.  Actual  facts 
should  have  been  placed  before  us  on  which  we  could  judge. 

The  railroad  first  upon  the  ground  gains  important  rights  by  the 
fact  of  its  presence.  The  use  of  its  line  ought  not  to  be  lightly  in- 
terfered with.  It  was  undoubtedly  in  part  the  object  of  the  Act  of 
1889,  while  insuring  safety  to  persons  and  property  transported,  to 
protect  established  companies  in  the  enjoyment  of  their  rights.  One 
way  of  arriving  at  the  propriety  of  a  proposed  crossing  would  be  to 
consider  whether  the  line  to  be  crossed  would  have  been  built  as  it  is 
as  respects  grades,  curves,  etc.,  had  those  building  it  known  a  cros- 
sing was  to  be  made  in  the  place  proposed.  Such  a  test  might  not 
be  decisive,  but  is  worthy  of  consideration  in  every  case. 

The  Act  of  1889  took  away  the  arbitrary  power  of  new  roads  to  lo- 
cate crossings  at  will;  and  its  effect  is  to  put  upon  them  the  burden 
of  showing  that  the  crossing  will  not  "unnecessarily"  impede  and 
endanger  the  travel  and  transportation  upon  the  road  crossed.  They 
should  point  the  Commission  a  clear  way  to  order  the  crossing  de- 
sired with  proper  regard  to  existing  rights  and  uses.  This  we  can 
not  say  has  been  done  in  the  case  before  us.  Giving  due  force  to  the 
testimony,  the  question  remains  in  serious  doubt. 

In  this  case  it  appears  from  an  unchallenged  estimate  that  the  in- 
creased expense  of  placing  the  crossing  at  the  point  a  half  mile 
further  west,  as  contended  for  by  respondent,  would  be  only  $8,594; 
unless  petitioner  should  be  obliged  to  purchase  nine  acres  of  ground 
between  its  right  of  way  and  the  creek  on  the  south,  in  which  case 
the  cost  would  be  increased  to  $10,844,  estimating  this  land  at  $250 
per  acre,  which  is,  it  seems  to  the  Commission,  a  very  liberal  if  not 
extravagant  allowance.  Thus,  we  see,  the  change  contended  for  by 
respondent  does  not  involve  a  large  outlay  by  petitioner;  and  we  are 


81 

unwilling  to  permanently  obstruct  or  cripple  an  established  line,  or 
to  take  a  serious  chance  of  doing  so,  where  the  expenditure  of  a  few 
thousand  dollars  will  remove  all  objections. 

The  petitioning  company  acquired  no  equities  in  the  proposed 
crossing  by  prematurely  grading  its  road  to  the  point.  The  corres- 
pondence submitted  shows  the  officers  of  respondent  never,  expressly 
or  by  any  fair  implication,  consented  to  the  crossing  unless  petitioner 
would  interlock  it  in  the  manner  stated  in  the  form  of  contract  sub- 
mitted by  them.  This  is  not  a  case  like  that  of  the  Chicago,  Madi- 
son &  Northern,  where  the  right  of  way  was  acquired  and  eighty  per 
cent  of  the  work  done  before  this  crossing  law  was  passed.  If  pe- 
titioner, with  the  law  before  it,  and  without  either  an  order  of  the 
Commission  or  the  consent  of  respondent,  chose  to  grade  its  road  for 
a  crossing,  it  did  so  on  its  own  responsibility,  and  at  its  own  peril. 

Under  the  evidence  as  it  stands  before  us,  we  are  unable  to  find 
that  a  crossing  in  the  place  proposed  will  not,  in  the  language  of  the 
Act,  "unnecessarily  impede  or  endanger  the  travel  or  transportation 
upon  the  railway  crossed." 

DECISION. 

It  is  therefore  decided  and  ordered,  that  the  petitioner,  the  St. 
Louis  &  Eastern  Railway  Company,  have  leave,  and  it  is  hereby  em- 
powered, to  cross  with  its  track  the  main  line  and  track  of  the  Toledo, 
St.  Louis  and  Kansas  City  Railroad  Company  at  grade  at  a  point  in 
the  N.  E.  quarter  of  the  N.  W.  quarter  of  Section  4,  Town  3  North, 
Range  8  West,  of  the  3rd  P.  M.,  2,940  feet  west  of  the  point  named 
for  said  crossing  in  the  petition  filed  in  this  case. 

The  point  of  crossing  hereby  established  is  marked  by  the  letter 
"B"  upon  the  plat  submitted  by  petitioner  and  now  with  the  files  in 
this  cause,  to  which  plat  reference  is  hereby  made  for  greater  cer- 
tainty. 

It  is  ordered  that  petitioner  pay  all  costs  and  expenses  of  the  Com- 
mission incurred  under  its  petition. 

SPRINGFIELD,  ILLINOIS,  January  7,  1891. 


LIVE  STOCK  TARIFF 


THE  FOLLOWING  CORRESPONDENCE  WILL  BE  FOUND  TO  ILLUSTRATE 
CERTAIN  POINTS  ARISING  UNDER  THE 


NEW  SCHEDULE 


LIVE  STOCK  RATES 


ADOPTED    BY    THE 


IN  FORCE  JANUARY  1,  1891. 


SPRINGFIELD,  ILL.: 
PHILLIPS  BROS.,  STATE  PRINTERS. 

1900. 


85 


LETTER  OF  PRES.  J.  F.  BARNARD. 

OHIO  &  MISSISSIPPI  RAILWAY  Co.,  j 

PRESIDENT'S  OFFICE, 
CINCINNATI,  December  29,  1890.     ) 

Hon.  James  H.  Paddock,  Secretary  Illinois  Railroad  and  Ware- 
house Commissioners,  Springfield,  Illinois. 

DEAR  SIR: — Your  letter  of  the  15th  instant  duly  received,  with 
enclosures,  and  there  being  some  points  about  it  which  I  thought  I 
ought  to  consult  counsel  about,  I  so  consulted  them,  and  by  their  ad- 
vice I  write  you  this  letter. 

Our  counsel  say  that  a  compliance  with  your  order  "would  be  a 
direct  and  positive  discrimination  and  violation  of  the  Illinois  stat- 
utes, particularly  paragraph  147,  chapter  114,  Starr  &  Curtiss.  We 
can  see  no  reason  for  discrimination  between  the  two  classes  of  cattle 
which  the  Commission  makes." 

This  refers  to  a  point  I  would  make — as  to  whether  there  is  any- 
thing in  the  law  making  it  obligatory  on  the  company,  or  empower- 
ing the  Commission  to  fix  a  different  rate  on  cattle  which  might  be 
denominated  "stock  cattle  and  feeders"  than  that  on  cattle  generally. 
We  are  impressed  with  the  idea  that  the  leading  feature  of  the  duties 
of  the  Commission  is  to  fix  maximum  rates,  and  that  the  schedules  by 
them  so  prepared  are  prima  facie  evidence;  and  there  is  no  provision 
in  the  statutes  exempting  the  railroad  company  for  discrimination, 
even  though  it  should  comply  with  the  order  of  the  Commissioners 
in  making  such  discrimination. 

I  would  be  glad  if  you  will  cite  to  me  the  law  giving  the  Commis- 
sion authority  to  prescribe  the  number  of  persons  that  shall  be  car- 
ried free  with  a  specific  number  of  car  loads  of  cattle,  and  returned 
free  on  any  regular  train  of  the  company. 

I  would  also  like  to  know  what  authority  there  is  for  a  discrimina- 
tion against  the  shipper  of  one  car  load  of  live  stock  or  his  agent, 
inasmuch  as  your  schedule  says:  "The  shipper  of  one  car  of  live 
stock,  or  his  agent,  shall  be  carried  free  with  such  animals  to  take 
care  of  the  same,  and  shall  be  entitled  to  a  return  ticket,  good  on  any 
regular  train  of  the  company,  for  not  to  exceed  one-half  fare."  This 
implies  that  the  company,  in  your  judgment,  might  charge  him  one- 
half  fare  or  less.  Would  not  this  be  a  case  of  clear  discrimination 
against  the  small  shipper,  when,  in  the  next  paragraph,  you  say  that 


86 

the  shipper  of  two  or  three  cars  of  live  stock  shall  be  carried  free 
and  returned  free?  Has  the  Commission  authority  thus  to  discrimin- 
ate against  the  small  shipper? 

Again,  I  would  ask  the  question:  Whence  does  the  Commission 
derive  its  authority  to  fix  minimum  weights  of  loads  for  different 
sizes  of  cars  and  for  different  classes  of  live  stock? 

I  believe  it  is  the  practice  with  many  western  roads,  in  dealing 
with  this  matter,  to  give  passes  about  as  the  Commission  have  sug- 
gested— that  is  to  say,  the  shipper  of  two  or  three  cars  of  live  stock 
shall  be  carried  free ;  four  two  seven  cars,  two  persons  free ;  eight 
cars  or  more,  three  persons  free.  This  has  grown  to  be  a  practice 
among  western  roads,  but  is  not  uniform.  On  the  Ohio  &  Mississippi 
road,  on  the  inter-state  business  going  to  Cincinnati,  passes  are  issued 
to  the  shippers  to  accompanv  stock  going  to  market  on  about  that 
basis.  ALL  PAY  THEIR  FARE  HOME,  whether  shippers  of  one 
car  or  several.  Of  course  you  will  say  that  with  inter-state  business 
the  Commission  does  not  claim  to  deal.  The  same  rule  applied  hith- 
erto on  this  road  on  any  stock  shipped  into  East  St.  Louis  from  Illinois 
points.  I  only  desire  to  know  how  far  the  Commission  is  acting  un- 
der the  law,  and  how  far,  if  at  all,  its  action  is  of  an  advisory  nature. 
It  has  always  been  understod  that  cattle  shipments  were  accompanied 
by  certain  (one  or  more)  persons  to  look  after  them  in  transit;  get 
them  up  if  they  got  down ;  see  that  they  are  properly  watered  and 
cared  for,  etc.  Cattle  have  always  been  understood  to  be  carried  at 
less  rates  than  otherwise  because  of  the  persons  accompanying  them 
to  look  after  them.  I  was  not  aware  that  there  was  any  law  requir- 
ing that  railroad  companies  should  carry  persons  with  live  stock  nor 
providing  how  they  shall  be  returned,  free  or  otherwise.  But  I  do 
know  that  competition  for  a  long  term  of  years  has  resulted  in  return 
passes  being  given  for  live  stock  shippers  or  their  agents,  but  I  know 
of  no  law  to  that  effect. 

Have  I  made  the  points  clear?  First,  about  discrimination  between 
stock  as  feeders  and  other  classes  of  cattle;  then,  about  minimum 
weights;  and,  finally,  about  the  discrimination  which  you  suggest 
between  the  small  shipper  and  the  larger  shipper,  in  the  matter  of 
return  fares. 

Upon  receipt  of  your  reply,  I  will  be  glad  to  submit  the  same  to 
our  counsel  and  see  if  matters,  which  are  not  a  doubt  in  their  minds, 
shall  be  so  set  out  as  that  we  shall  be  better  informed. 

Presumably,  if  we  should  fail  to  comply  with  your  orders,  suits 
may  come,  and  that  notwithstanding  your  order  allows  what  we  think 
an  unjust  discrimination.  Of  course  courts  might  not  exhibit  any 
great  zeal  in  holding  a  corporation  liable  for  the  compliance  with 
your  order,  but  that  remains  to  be  seen. 

Yours  respectfully, 

J.  F.  BARNARD, 

President. 


87 

REPLY  TO  COMMUNICATION  OF  J.  F.  BARNARD,  MADE 

ON  BEHALF  OF  THE  COMMISSION,  BY  ISAAC 

N.  PHILLIPS,  COMMISSIONER. 

STATE  OF  ILLINOIS,  ) 

OFFICE  OF  RAILROAD  AND  WAREHOUSE  COMMISSION,  > 

SPRINGFIELD,  ILL.,  January  21,  1891.      ) 

J.  F.  Barnard,  Esq.,  President  O.  &  M.  Railway  Company,  Cin- 
cinnati, Ohio. 

DEAR  SIR: — Replying  for  the  Railroad  and  Warehouse  Commis- 
sion, to  your  letter  of  December  29,  1890,  addressed  to  Secretary 
Paddock,  I  have  to  say,  the  advice  of  your  counsel  to  the  effect  that 
the  fixing  of  a  different  rate  of  freight  on  "stock  cattle  and  feeders" 
from  that  on  other  cattle,  is  a  "direct  and  positive  discrimination  and 
violation  of  the  Illinois  statutes,  particularly  paragraph  147,  etc.",  is, 
in  my  judgment,  not  sound. 

The  point  thus  made,  as  I  understand  it,  in  effect  raises  the  ques- 
tion whether  or  not  the  Commission  can  legally  divide,  for  freight 
purposes,  animals  known  as  "cattle"  into  two  classes.  In  a  broader 
sense  it  may  be  considered  as  raising  the  question  of  the  Commis- 
sion's power  under  the  law  to  classify  articles  of  freight  at  all,  for  if 
this  attempted  classification  of  cattle  is  illegal,  it  is  quite  evident  the 
effort  to  classify  numerous  other  articles  is  likewise  illegal. 

If  the  Commission  is  not  empowered  in  making  its  schedule  of 
maximum  rates  to  make  a  classification  of  freight,  then  I  am  unable  to 
see  how  it  could  make  a  schedule  at  all.  The  Commission  is  not,  in 
my  judgment,  bound  to  classify  all  kinds  of  cattle  in  one  classs,  any 
more  than  they  would  be  bound  to  classify  all  articles  of  iron  or  of 
wood  in  one  class. 

Each  description  of  the  offense  of  discrimination  contained  in  sec- 
tion 147,  to  which  you  refer,  provides  expressly  that  the  freight 
hauled  shall  be  "of  the  same  class."  The  charging  of 'one  shipper 
more  than  another  for  "a  like  quantity"  of  freight  does  not,  under 
that  section,  constitute  per  se,  a  discrimination,  provided  the  freight 
is  of  a  different  and  higher  class  in  the  one  case  than  in  the  other. 

To  what  do  these  words  "of  the  same  class"  refer?  Evidently  they 
refer  to  those  classes  of  freight  which  it  was  expected  the  Railroad 
Commission  would  fix  in  the  schedule  it  was  ordered  to  make.  The 
statute,  it  is  true,  did  not  say  in  so  many  words  that  the  Railroad 
Commission  should  divide  freight  into  classes;  and  on  the  strict  con- 
struction principles  of  your  counsel,  I  suppose  it  would  be  said  the 
Commission  has,  therefore,  no  power  to  classify  freight.  It  is,  how- 
ever, the  view  of  the  Commission  that  the  word  "schedule"  was  used 
in  the  statute  in  the  sense  it  had  acquired  in  railroad  practice;  and, 
obviously,  to  make  a  schedule  of  rates  implies  the  classification  of 
the  freights. 

When  I  speak  of  our  having  classified  feeders  and  other  cattle  sepa- 
rately, I  do  not  of  course  mean  we  have  made  a  classification  in  form 


88 

like  that  used  for  other  articles,  numbering  or  lettering  the  classes. 
That  was  unnecessary  in  law,  or  for  purposes  of  convenience  and 
perspicuity  as  in  the  case  of  other  articles.  The  effect  of  the  schedule 
is  to  divide  cattle  into  two  classes — one,  "stock  cattle  and  feeders," 
and  the  other  all  other  cattle;  and  this  is  just  as  effective  as  though 
we  had  numbered  or  lettered  the  classes.  The  simplicity  of  the  sub- 
ject did  not  require  the  latter  to  be  done. 

It  is  difficult  to  see  upon  what  principle  your  counsel  could  come 
to  the  conclusion  that  all  animals  known  as  cattle  necessarily  fall  "in 
the  same  class."  In  making  tariffs  railroad  managers  do  not  assume 
that  nature  has  classified  articles  in  a  manner  binding  upon  them. 
There  may  be  different  classes  of  cattle.  We  could  surely  make  a 
separate  class  of  young  cattle,  called  calves,  and  yet  calves  would 
fall  under  the  generic  term  of  "cattle." 

Classifications  of  freights  are  efforts  to  apportion  charges  justly, 
according  to  risk,  bulk,  value  and  other  elements;  but  every  classifi- 
cation is,  after  all,  but  a  matter  of  judgment,  and  in  a  sense  arbi- 
trary. It  is  safe  to  say  no  court  will  ever  inflict  the  statutory  penalty 
upon  any  company  because  in  its  charges  it  submits  to  a  classification 
of  freight  established  by  the  Railroad  and  Warehouse  Commission, 
even  though  the  court  might  be  of  opinion  such  classification  was  ar- 
bitrary and  not  based  upon  sound  reason  It  is  only  when  a  company 
makes  discrimination  between  shipments  of  the  same  class  that  it  in- 
curs the  penalty.  For  that  purpose  "stock  cattle  and  feeders"  are  one 
class  and  other  cattle  another  and  different  class. 

So  much  for  the  alleged  violation  of  law  which  your  counsel  think 
would  be  involved  in  the  shipments  of  feeders  for  a  less  rate  of 
freight  than  fat  cattle. 

Coming  now  to  the  reasons  which  actuated  the  Commission  in 
making  a  separate  class  and  rate  for  feeders,  I  have  only  to  say  that 
the  Commission  in  this  matter  simply  followed  the  practice  of  the 
railroad  companies  themselves.  Your  company  may  not  have  joined 
in  that  practice,  but  all  the  companies  entering  the  city  of  Chicago 
have  long  been  carrying  stock  cattle  at  three-fourths  of  the  rate 
charged  for  cattle  transported  to  market.  This  practice  was  adopted 
without  suggestion  from  the  Railroad  Commission,  and  no  Railroad 
Commission  ever  thought  of  prosecuting  any  company  for  this  as  a 
discrimination  under  section  147. 

The  reason  for  the  practice  probably  was,  that  in  most  cases,  stock 
cattle  transported  out  from  the  stock  yards  are  fed  and  again  re- 
turned, and  the  company  that  transports  them  out,  in  almost  every 
case,  has  a  second  haul  of  the  cattle,  transporting  them  again  to 
market.  I  do  not  pretend  to  know  positively  that  such  was  the  reason, 
but  do  know  the  custom  had  long  prevailed  when  the  new  schedule 
was  adopted.  The  fact  that  stock  cars  usually  return  empty,  proba- 
bly had  something  to  do  with  it. 

The  Commission  had  reason  to  believe  that  when  a  new  tariff  of 
live  stock  rates  was  adopted,  the  roads  would  come  plump  up  to  the 
tariff  in  all  particulars,  and  would  give  shippers  what  the  tariff  gave 


89 

them,  and  no  more.  In  view  of  this  fact,  you  can  see  that  the  Com- 
mission could  not  well  take  the  chance  of  raising  rates  to  the  extent 
of  one-third  on  shipments  of  stock  cattle  above  what  the  roads  have 
voluntarily  made  them. 

It  should  be  remembered  the  Commission  had  to  make  a  tariff,  not 
for  a  single  road  or  a  single  section  of  the  State,  but  for  all  roads 
and  covering  the  entire  State.  Upon  such  a  basis,  and  in  view  of  all 
the  interests  involved,  our  live  stock  schedule  wae  made. 

I  may  add  that  the  Commission  believe  their  tariff  and  classifica- 
tion, as  made,  is  not  unreasonable,  considered  on  its  merits,  and  in- 
dependently of  the  practice  which  I  have  stated  originally  gave  rise 
to  it. 

You  further  say  in  your  letter,  "I  would  be  glad  if  you  will  cite 
me  to  the  law  giving  the  Commission  authority  to  prescribe  the 
number  of  persons  that  shall  be  carried  free  with  a  specific  number 
of  car  loads  of  cattle,  and  returned  free  on  any  regular  train  of  the 
company." 

If,  by  this,  you  inquire  for  some  expressed  statutory  words  which 
give  the  Commission  that  power,  then  I  answer  there  is  no  such  ex- 
press provision.  But  it  does  not  follow,  because  authority  is  not 
given  in  terms,  that  the  power  does  not  exist. 

The  live  stock  tariff,  in  effect,  provides  that  live  stock  shall  be 
carried  in  car  loads  at  so  much  per  hundred  pounds,  and  that  the 
freights  paid  shall  include  the  right  of  the  owner,  or  his  agent,  to 
go  with  such  stock  without  paying  a  separate  fare  for  himself;  and 
in  the  case  of  a  single  car  shipment,  the  freight  so  paid  shall  in- 
clude half  the  return  fare;  and  in  case  of  a  larger  shipment,  shall  in- 
clude a  free  return.  The  Commission  believe  such  a  provision  is 
within  the  authority  of  the  statute,  being  included  in  the  power  to 
fix  maximum  rates  of  freight  and  maximum  passenger  fares. 

You  may  believe  the  rates  so  fixed  are  unreasonably  low,  and  it  is 
a  right  any  railway  company  has,  under  the  statute,  to  litigate  that 
question  at  its  own  peril,  if  its  managers  see  fit. 

I  see  nothing  whatever  in  the  point  you  make  to  the  effect  that  the 
shipper  of  a  single  car  is  discriminated  against,  under  the  statute, 
because  he  is  not  also  returned  free,  as  in  the  case  of  a  shipper  of 
more  cars. 

If  it  were  provided  that  the  shipper  of  one  car  might  return 
free,  then  your  point  as  to  this  discrimination,  as  you  now  state  it, 
would  be  obviated;  but  you  might  still  say  unless  provision  were 
made  to  return  the  shipper  of  one  or  two  animals  (less  than  a  car 
load)  free,  such  smaller  shipper  might  still  complain  of  discrimina- 
tion. Of  course,  the  quantity  of  live  stock  shipped  might  be  so  small 
that  the  fare  of  an  attendant  would  amount  to  much  more  than  the 
freight  on  the  stock,  and  it  would  obviously  be  unreasonable  and  un- 
just to  compel  the  free  carriage  of  a  man  where  the  whole  freight  in- 
volved is  so  small.  The  freight,  in  this  case,  would  have  to  be  raised 
to  a  point  that  would  make  it  reasonable  for  the  whole  service  per- 
formed, or  the  schedule  would  not  be  defensible. 


90 

To  illustrate:  It  would  be  less  reasonable  to  say  the  payment  of 
$5.00  for  the  transportation  of  a  single  animal,  say  150  miles,  should 
entitle  a  man  to  go  and  return  free,  than  it  would  be  to  say  the  pay- 
ment of  $75.00  for  the  carriage  of  three  car  loads  of  animals  the 
same  distance,  should  entitle  a  man  to  like  free  carriage. 

Besides,  you  will  observe,  upon  again  reading  the  schedule,  that  it 
does  not  compel  you  to  charge  the  half  fare  in  the  case  of  a  single 
car.  You  are  at  full  liberty  to  pass  the  owner  of  such  stock  back 
free,  if  you  see  fit,  and  thus  avoid  the  discrimination  of  which  you 
seem  to  fear  the  consequences. 

In  this  matter,  as  in  the  case  of  the  decreased  rate  on  stock  cattle, 
the  Commission  but  followed  the  practice  of  the  roads  themselves, 
the  only  change  being  in  the  matter  of  returning  the  shipper  of  one 
car  at  half  fare.  It  was  to  correct  the  discrimination  made  in  practice 
against  the  shipper  of  a  single  car,  that  it  was  provided  he  should 
have  a  half  fare  return  rate;  but  in  this  the  Commission  thought  it 
reasonable  to  take  into  consideration  the  quantity  shipped,  and  the 
amount  of  revenue  involved  in  the  transaction.  So  they  gave  the 
shipper  of  a  single  car  but  a  half  fare  home,  as  against  the  free  ride 
of  the  larger  shipper. 

I  speak  of  it  as  a  "free  ride,"  but  it  is  not  such  in  fact.  The  fare 
is  really  paid  when  the  freight  on  the  stock  is  paid. 

Most  roads,  I  think,  not  only  allow  the  shipper,  or  his  agent,  to  go- 
free  with  the  stock,  but  require  it,  not  wishing  to  take  the  increased 
risk  of  injury  to  the  stock  which  would  devolve  upon  the  company 
did  its  own  agents  assume  the  care  of  the  stock  in  transit,  instead  of 
the  owner  or  his  agent.  It  does  not  seem  unreasonable  that  they 
should  return  the  shipper  free,  or  at  reduced  fare,  depending  upon 
the  amount  of  his  shipment  and  the  corresponding  revenue  derived. 

Again  you  say,  "Whence  does  the  Commission  derive  its  authority 
to  fix  minimum  weights  of  loads  for  different  sizes  of  cars,  and  for 
different  classes  of  live  stock?" 

This  question  would  seem  to  almost  answer  itself.  Obviously,  it 
would  be  unjust  to  fix  the  same  minimum  weights  for  sheep,  for  in- 
stance, that  is  fixed  for  cattle  or  horses,  because  the  rate  is  higher, 
and  with  the  same  minimum,  a  much  larger  revenue  would  be  ob- 
tained for  a  smaller  service.  A  car  of  sheep  is  lighter  and  less  valu- 
able than  one  of  cattle  or  horses,  and,  equitably,  should  bring  less- 
revenue  instead  of  more. 

No  railroad  manager,  making  a  tariff,  would  think  of  doing  so  ab- 
surd a  thing  as  to  fix  the  same  minimum  for  every  kind  of  live  stock. 
None  has  done  such  a  thing  so  far  as  the  Commission  is  advised. 

It  would  be  likewise  unjust  to  fix  the  same  minimum  for  cars  of 
varying  lengths,  ranging  from  twenty-eight  to  thirty-six  feet.  In  the 
days  of  car-lot  rates  the  companies  insisted  upon  the  justice  of  mak- 
ing a  distinction  in  the  freight  charge  between  short  and  long  cars. 
The  Commissioners'  present  livestock  tariff  proceeds  upon  the  theory 
that  it  is  just  to  give  the  company  more  for  a  large  car  than  for  a 
small  one.  Do  you  regard  this  as  unreasonable? 


91 

It  is  true,  the  statute,  which  is  the  Commissioners'  charter  of  au- 
thority, says  nothing  in  terms  about  minimum  weights  for  car  loads. 
I  suppose  your  counsel  would  say,  since  the  statute  does  not  name 
minimum  weights,  that  the  Commission  has  no  power  over  the  sub- 
ject; bat,  obviously,  if  the  Commission  is  to  fix  the  rate,  and  the 
companies  are  to  fix  their  own  minimum,  then  it  will  be  easy  to  evade 
any  tariff  the  Commissioners  might  make.  All  that  would  be  neces- 
sary would  be,  when  the  Commission  lowers  the  rate,  for  the  com- 
panies to  raise  the  minimum.  The  minimum  could  be  put  high 
enough  upon  a  car  of  live  stock  so  that  one  cent  per  hundred  would 
bring  more  freight  than  the  present  rates  for  any  given  distance. 

When  the  Commission  was  authorized  to  make  a  schedule  of  rates, 
it  is  fair  to  presume  it  was  intended  it  should  make  a  complete  sched- 
ule— one  that  would  prove  in  practice  effective,  reasonable  for  the 
roads  and  reasonable  also  for  shippers,  and  not  one  that  would  prove 
a  felo  de  se  and  fall  by  its  own  fatal  omissions  and  inconsistencies. 

It  only  remains  to  be  said  in  reply  to  your  request  to  know  how 
far  the  Commissioners  deem  themselves  to  have  acted  within  the  law, 
and  how  far  their  schedule  is  simply  "advisory,"  that  the  schedule  is 
in  no  particular  meant  to  be  simply  advisory;  that  in  the  opinion  of 
the  Commissioners  it  is  within  their  power  to  make  the  schedule  in 
form  and  manner  as  made;  and  it  may  be  added  the  Commissioners 
do  not  shrink  from  any  test  of  its  legality  which  any  company  of  the 
State  may  see  fit  to  make.  They,  however,  hope  that  a  resort  to  the 
legal  penalties  may  not  in  any  case  be  found  necessary. 

The  live  stock  schedule  was  not  made  hastily,  but  after  a  very  full 
consideration  of  the  facts,  and  of  the  situation  presented  by  the  live 
stock  business  of  the  State;  and  in  its  preparation  due  regard  was. 
had  to  the  present  practice  of  the  roads  themselves. 

Yours  very  truly, 

ISAAC  N.  PHILLIPS, 

For  the  Commission. 


IsTO.  13 


CLAIMS  FOR  DAMAGES 


ARISING    FROM 


ERRONEOUS  INSPECTION 


ORAIX. 


OPINION  BY  HON.  GEORGE  HUNT, 
Attorney  General. 


SPRINGFIELD.  ILL.: 
PHILLIPS  BROS.,  STATE  PRINTERS. 

1900. 


95 


OPINION  OF  HON.  GEORGE  HUNT,  ATTORNEY   GENER- 
AL OF  ILLINOIS. 


SPRINGFIELD,  ILL,  March  31,  1891. 

HON.  ISAAC  N.  PHILLIPS,  Chairman  Board  Railroad  and   Ware- 
house Commissioners. 

DEAR  SIR: — Sometime  since,  your  Board  submitted  to  me  the 
papers  relating  to  the  claim  of  Franklin,  Edison  &  Co.,  of  New  York, 
for  $1,156.70,  which  they  ask  the  Grain  Inspection  Department  of 
Chicago  to  pay.  Accompanying  the  papers  was  an  elaborate  argu- 
ment in  favor  of  the  claim  by  Hon.  Francis  A.  Riddle,  attorney  for 
the  claimants. 

The  basis  of  said  claim  is  the  alleged  false  or  erroneous  inspection, 
by  the  employe's  of  the  Grain  Inspection  Department  of  Chicago,  of 
40,060  bushels  of  wheat,  bought  in  Chicago,  and  which  was  subse- 
quently delivered  to  Edson  &  Co.  at  Brooklyn,  New  York,  and  on 
account  of  such  false  or  erroneous  inspection,  the  purchasers  were 
damaged  in  said  sum  of  $1,156.70.  The  sufficiency  of  the  proof  to 
establish  the  fact  of  the  injury,  its  cause,  or  the  amount  thereof,  is 
neither  admitted  nor  denied,  and  my  opinion  is  asked  only  as  to  the 
liability  of  the  department,  as  such,  for  such  injury. 

In  answer  to  your  communication,  permit  me  to  say: 

The  liability  of  the  department  for  such  a  claim,  and  the  authority 
of  the  officers  to  pay  out  money  in  their  custody  in  satisfaction  there- 
of, must  be  found  in  the  statute,  either  by  express  provision  or  such 
clear  implication  as  to  leave  no  doubt  as  to  the  intention  of  the  Leg- 
islature relating  thereto;  and  unless  so  found,  neither  such  liability 
or  authority  can  be  held  to  exist.  The  provisions  of  law  relating  to 
this  subject  are  all  found  in  section  14  of  "An  act  to  regulate  public 
warehouses  and  warehousing  and  inspection  of  grain,  and  to  give 
effect  to  Article  XIII  of  the  Constitution  of  this  State,"  in  force 
July  1,  1871.  Hurd's  Rev.  Stat.  Chap.  114,  pps.  1029,  1030,  1031. 

The  first  paragraph  of  said  section  provides  for  the  appointment 
of  a  Chief  Inspector  of  Grain;  the  second  fixes  the  duties,  and  the 
fourth  relates  to  his  oath  and  bond,  and  the  liabilities  thereon  by 
reason  of  failure  to  properly  discharge  the  duties  of  his  office.  The 
third  paragraph  is  as  follows: 

"The  said  Chief  Inspector  shall  be  authorized  to  nominate  to  the  Commis- 
sioners of  Railroads  and  Warehouses,  such  suitable  persons,  in  sufficient 
number,  as  may  be  deemed  qualified  for  assistant  inspectors,  *  *  and  also 


96 

such  other  employes  as  may  be  necessary  to  properly  conduct  the  business  of 
his  office;  and  the  said  Commissioners  are  authorized  to  make  such  appoint- 
ments." 

The  liability  of  the  assistant  inspector  is  fixed  in  the  fifth  para- 
graph, which  is  as  follows: 

"And  each  assistant  inspector  shall  take  a  like  oath;  execute  a  bond  in  the 
penal  sum  of  $5,000,  with  like  conditions,  and  to  be  approved  in  like  manner 
as  is  provided  in  the  case  of  the  Chief  Inspector,  which  said  several  bonds 
shall  be  filed  in  the  office  of  said  Commissioners;  and  suit  may  be  brought 
upon  said  bond  or  bonds  in  any  court  having  jurisdiction  thereof,  in  the 
county  where  the  plaintiff  or  defendant  resides,  for  the  use  of  the  person  or 
persons  injured," 

I  find  no  provision  of  the  law  fixing  the  liabilities  of  the  depart- 
ment, as  such,  for  the  erroneous  inspection  of  grain;  but  the  fifth 
paragraph  above  quoted,  taken  in  connection  with  the  fourth,  clearly 
provides  that  the  assistant  inspector  shall  be  liable  to  any  person  in- 
jured, for  all  damages  occasioned  by  his  neglect  or  failure  to  dis- 
charge his  duties,  and  that  suit  may  be  brougnt  on  his  bond  for  the 
recovery  of  such  damages.  The  law  requires  that  he  shall  be  quali- 
fied for  the  duties  which  he  assumes,  and  his  bond  is  given  for  the 
purpose  of  holding  him  to  the  faithful  performance  of  those  duties, 
and  to  idemnify  those  who  may  be  injured  by  his  neglect  so  to  do.  I 
note  what  the  claimants  and  their  learned  counsel  say  as  to  the  right 
to  recover  on  the  bond  of  the  assistant  inspector,  but  I  can  not  con- 
cur either  in  the  reasoning  or  conclusions  reached  by  them.  The 
remedy  for  the  injury  of  which  they  complain,  must,  in  my  opinion 
be  found  by  suit  on  the  bond  of  the  assistant  inspector,  and  this 
remedy  seems  to  be  adequate. 

Again,  paragraph  six  of  said  section  provides  that  the  Board  of 
Railroad  and  Warehouse  Commissioners  "shall  also  have  the  power 
to  fix  the  rate  of  charges  for  the  inspection  of  grain,  and  the  manner 
in  which  the  same  shall  be  collected;  which  charges  will  be  regulated 
in  such  a  manner  as  will,  in  the  judgment  of  the  Commissioners,  pro- 
duce sufficient  revenue  to  meet  the  necessary  expenses  of  the  service 
of  inspection,  and  no  more." 

The  eleventh  paragraph  is  as  follows: 

"All  necessary  expenses  incident  to  the  inspection  of  grain,  and  to  the  of- 
fice of  Registrar  economically  administered,  including  the  rent  of  suitable  of- 
fices, shall  be  deemed  expenses  of  the  inspection  service,  and  shall  be  included 
in  the  estimate  of  expenses  of  such  inspection  service,  and  shall  be  paid  from 
the  funds  collected  for  the  same." 

The  power  of  the  Commissioners  to  raise  funds  for  the  expenses 
incident  to  the  inspection  of  grain  is  found  in  the  sixth  paragraph, 
and  the  exercise  of  this  power  is  expressly  limited  to  the  raising  of 
such  amount  "as  will,  in  the  judgment  of  the  Commissioners,  pro- 
duce sufficient  revenue  to  meet  the  necessary  expenses  of  the  service 
of  inspection,  and  NO  MORE." 

It  seems  quite  clear  that  this  paragraph  confers  upon  the  Commis- 
sioners no  power  to  impose  charges  for  the  purpose  of  raising  a  fund 
to  meet  unforeseen  claims  for  damages  caused  by  the  negligence  or 
incapacity  of  employes.  The  amount  of  such  claims  it  would  be  im- 


97 

possible  to  foretell  or  properly  provide  against.  Besides,  the  attempt 
to  do  so  would  impose  extortionate  charges  upon  those  whose  grain 
is  inspected,  to  shield  from  personal  liability  negligent  or  incompe- 
tent appointees.  In  the  eleventh  paragraph,  what  shall  be  included 
in  the  estimate  of  expenses  is  somewhat  specifically  named.  Claims 
for  injury  are  not  mentioned,  nor  do  I  think  they  were  contemplated 
by  the  Legislature. 

From  this  I  conclude  that  the  statute  confers  upon  the  Commis- 
sioners no  authority  to  use  funds  collected  for  the  necessary  expenses 
incident  to  the  inspection  service  in  paying  claims  for  injuries  aris- 
ing from  false  or  erroneous  inspection. 

Permit  me  to  express  my  regret  that  the  pressure  of  official  duties, 
which  I  could  not  postpone,  have  prevented  an  earlier  answer  to  your 
communication.  I  am, 

Very  respectfully  yours, 

GEORGE  HUNT,  Attorney  General. 


— 7O 


No. 


BEFORE  THE 


Railroad  and  Warehouse  Commission 


STATE  ©F  ILLINOIS. 


COMPLAINT  No.  78. 


COWLES  &  McKEE,  Complainants. 

' 
. 

vs. 

• 

THE  CHICAGO,  ROCK  ISLAND  &  PACIFIC  RAILWAY  Co.,  Respondent. 


lEIXTOIR/TIOlsr 


Filed  May  9,  1891.— Hearing  at  Chicago,  July  29,  1891 — 
Decision  Rendered  October  7,  1891. 


APPEARANCES: 

For  Complainants,  N.  G.  IGLEHART. 
For  Respondent,  THOS.  S.  WRIGHT. 


©PINION  ©F  e©MMISSI©N. 


101 


OPINION  OF  COMMISSION. 


OPINION   BY   PHILLIPS,  CHAIRMAN: 

The  object  of  this  complaint  is  to  correct  alleged  extortionate 
charges  for  the  switching  of  cars  in  Chicago.  It  is  alleged  the  de- 
fendant, in  January,  1891,  put  into  effect  a  switching  tariff  between 
junction  points  and  the  industries  upon  its  line,  by  which  the  charge 
for  switching  loaded  cars  between  41th  and  22d  streets  was  made 
four  dollars  per  car,  the  distance  being  under  three  miles,  thus  ex- 
ceeding the  maximum  switching  charge  for  a  three  mile  haul  fixed 
by  the  Commission.  It  is  further  alleged  specifically  that  on  May 
2,  1891,  car  No.  6824  loaded  with  oats  was  delivered  by  the  Atchison 
Company  to  defendant  to  be  switched  from  44th  street  to  complain- 
ants' elevator,  located  at  22d  street,  the  distance  being  about  13,700 
feet,  which  car  respondent  refused  to  switch  unless  four  dollars  were 
first  paid  for  the  service,  and  that  a  tender  of  two  dollars,  the  maxi- 
mum rate,  was  made  to  the  local  agent  of  respondent  which  he  de- 
clined to  receive,  compeling  complainants  to  pay  four  dollars. 

The  switching  schedule  referred  to  in  the  petition  does  on  its  face 
provide  rates  for  switching  in  excess  of  the  maximum  rate  fixed  by 
the  Commission,  which  latter  is  two  dollars  per  car  for  a  distance  not 
exceeding  three  miles.  This  maximum,  fixed  by  the  Commission,  is 
made  by  law  prima  facie  a  reasonable  rate,  and  any  company  which 
charges  more  must  assume  the  burden  of  showing  in  defense,  when 
prosecuted  for  extortion,  that  the  maximum  fixed  by  the  Commission 
is  unreasonable,  and  therefore  not  legal  and  binding.  If  a  company 
can  show  this  to  the  satisfaction  of  jury  and  court,  it  can  defeat  the 
Commissioners'  schedule.  It  must,  however,  be  noted  that  no  prose- 
cution lies  against  a  railroad  company  for  the  simple  act  of  making 
an  improper  schedule,  or  a  schedule  higher  than  the  maximum  fixed 
by  the  Commission.  Only  overt  acts  done,  and  specific  charges  de- 
manded, or  received,  on  actual  shipments,  can  avail  as  evidence  in  a 
prosecution  for  extortion.  We  might,  and  no  doubt  would,  admonish 
a  company  we  saw  preparing  to  make  illegal  charges,  but  could  not 
prosecute  before  it  had  done  the  act. 

Respondent,  to  the  allegation  concerning  the  issuing  of  this  tariff, 
says,  it  was  not  intended  to  make  a  schedule  in  defiance  of  the  Com- 


102 

missioners'  authority:  and  certain  explanations  are  given  in  regard 
to  objectionable  portions  of  the  schedule  which  will  appear  from  the 
discussion  further  on. 

The  important  and  particular  allegation  of  the  complaint  concerns 
car  No.  6824  for  the  switching  of  which  from  44th  to  22d  street  it  is 
alleged  four  dollars  was  demanded,  the  distance  being  under  three 
miles.  This  allegation,  if  proved,  would  ground  a  prosecution  for 
extortion.  Upon  this  allegation  evidence  was  heard,  and  this  evi- 
dence shows,  conclusively,  that  while  the  expense  bill  was  made  upon 
this  car  as  from  the  44th  street  yard  of  respondent,  the  car  was  in 
fact  received  by  respondent  at  and  transported  by  it  from  its  51st 
street  yard,  which  latter  yard  it  is  conceded  is  more  than  three  miles 
from  the  complainants'  warehouse.  The  car  was  taken  to  the  yard 
at  51st  street  by  the  Atchison  engineer,  as  he  himself  testified  with- 
out contradiction,  and  there  delivered  to  respondent.  But  it  is  said, 
in  passing  to  this  yard,  the  car  came  upon  a  track  of  respondent  at  a 
point  nearer  than  three  miles  to  complainants'  warehouse  at  22d 
street;  and  it  is  therefore  insisted,  that  only  the  distance  from  such 
nearer  point  to  the  warehouse  ought  to  be  considered  in  determining 
the  length  of  the  haul.  This  latter  position  we  will  now  examine. 

It  is  contended  that  the  establishment  and  operation  of  different 
yards  by  respondent  in  the  city  of  Chicago  as  distributing  points  for 
different  classes  of  freight  and  cars  is  a  measure  taken  merely  for  the 
convenience  of  the  company  to  enable  it  to  handle  its  business  more 
economically  and  efficiently,  and  that  since  it  is  possible  for  the  com- 
pany to  deliver  cars  from  the  point  on  its  track  nearest  the  destina- 
tion to  which  the  car  first  comes,  that  point  should  be  taken  as  the 
place  from  which  to  measure  the  length  of  the  haul  rather  than  the 
distributing  yard  to  which  the  car  may  go  in  pursuance  of  the  reg- 
ulations of  the  company. 

In  this  view  of  complainants  we  are  unable  to  concur.  It  does  not 
seem  to  the  Commission  unreasonable  that  a  railway  company  doing 
a  large  business  in  a  large  city  should  establish  distributing  points 
for  the  different  classes  of  freight  or  cars  which  it  hauls.  Such  an 
arrangement  would  indeed  seem  to  be  imperatively  demanded  by 
good  railroad  practice.  It  is  shown  that  complainant  handles  daily 
in  Chicago  about  2,000  cars.  Without  a  methodical  system  of  tran- 
sporting these  cars  it  would  be  difficult,  if  not  impossible  for  respond- 
ent to  transact  its  business.  Therefore  upon  this  point  we  must  hold 
the  contention  of  complainants  and  their  counsel  not  to  be  sound. 

If  it  were  shown  by  the  proof  that  a  car  was  received  by  the  com- 
pany at  a  point  nearer  than  three  miles  of  its  destination,  and  that 
such  car  was  actually  hauled  by  respondent  direct  to  its  destination, 
a  distance  of  less  than  three  miles,  then  the  mere  fact  that  the  com- 
pany may  have  a  distributing  point  farther  away  to  which  the  car 
might  have  gone,  would  not  justify  the  company  in  charging  for  the 
longer  distance  from  this  distributing  yard  which  was  not  in  fact 
traversed;  and  if  such  a  charge  were  made,  it  would  constitute,  if 
above  the  fixed  maximum,  a  prima  facie  case  of  extortion.  Such  a 
case  was  not  made  by  the  proofs  under  this  complaint. 


103 

A  large  number  of  other  switching  bills  were  placed  before  the 
Commission  at  the  hearing,  though  not  set  forth  in  the  complaint. 
Many  of  these,  like  the  bill  of  Car  No.  6824,  purport  to  show  a  haul 
from  44th  to  22d  street;  others  from  16th  to  22d  street,  and  perhaps 
others  show  hauls  between  other  points,  all  less  than  three  miles. 
The  officers  of  respondents  in  explanation  of  these  bills  testified  to 
facts  tending  to  show  the  actual  hauls  made  may  have  been,  and 
probably  were,  different  from  those  stated  upon  the  face  of  the  oills. 
It  was  shown  the  clerk  who  makes  the  bills  for  switching  is  liable 
not  to  know  when  he  writes  them  where  the  car  was  transported 
from;  that  the  regular  course  of  business,  as  regard  cars  to  be  de- 
livered to  industries  such  as  complainants'  warehouse,  would  be,  even 
though  the  cars  were  received  at  16th  or  44th  street,  to  transfer  them 
to  the  distributing  yard  at  51st  street,  from  which  they  would  be 
switched  to  the  destination ;  and  that  the  economical  and  proper 
management  of  respondent's  business  imperatively  requires  that  this 
method  should  be  pursued.  The  expense  bills  might  therefore  show 
16th  street,  or  44th  street,  when  in  fact  the  initial  point  of  the 
switching  service  was  the  yard  at  51st  street,  and  the  billing  clerk 
might  use  in  the  bill  the  name  of  the  'yard  into  which  the  car  first 
came. 

This  testimony  as  to  the  course  of  business  pursued  by  respondent 
is  strongly  corroborated  by  what  we  Know  took  place  in  the  case  of 
car  6824  mentioned  in  the  complaint.  The  service  in  switching  this 
car  was  described  in  the  expense  bill  as  a  haul  from  44th  to  22d 
street,  but  the  car  was  in  fact  placed  by  the  company  bringing  it  to 
Chicago  in  respondent's  51st  street  yard,  and  was  there  received,  and 
from  there  switched  by  respondent. 

The  officers  of  respondent  took  the  numerous  bills  of  other  cars 
presented  and  have  made  a  statement  to  us  regarding  a  small  num- 
ber of  them  which  they  were  able  to  trace,  showing  that  like  car 
6824  the  actual  haul  was  over  three  miles.  Shipments  shown  by  a 
large  number  of  other  bills,  they  report  they  were  unable  to  trace. 

We  must  not  be  understood  to  hold  that  a  railway  company  may 
make  arbitrary  and  oppressive  arrangements  with  reference  to  the 
distribution  and  delivery  of  cars.  In  adopting  methods  of  business 
the  law  would  require  that  the  convenience  and  accommodation  of 
the  public  should  form  a  chief  object.  Arrangements  needlessly  op- 
pressive, having  in  view  only  increased  revenue,  neither  justified  by 
the  company's  necessity,  nor  required  by  the  public  good,  would 
certainly  be  illegal.  In  the  case  before  us  we  do  not  pass  upon  the 
propriety  of  respondent's  distributing  yards  and  methods  in  general. 
What  we  say  is  that  a  company  may  legally  systematize  its  business; 
and  there  is  nothing  before  us  in  this  case  which  proves  that  re- 
spondent in  doing  so  has  acted  oppressively. 

Being  satisfied  that  if  all  the  facts  before  us  were  taken  into  court 
a  prosecution  for  extortion  would  not  be  sustained,  we  are  constrained 
to  dismiss  the  complaint;  but  by  this  action  it  must  not  be  under- 


104 

stood  we  recede  from  our  established  maximum  rate  for  switching, 
or  that  we  shall  shrink  from  testing  this  rate  by  a  prosecution,  when 
a  case  shall  be  shown  to  have  arisen  under  it. 

The  complaint  will  be  dismissed. 

Adopted  by  the  Commission,  October  7,  1891. 

STATE  OF  ILLINOIS,  ) 

>  ss. 
SANGAMON  COUNTY,  ) 

I,  J.  H.  Paddock,  Secretary  of  the  Railroad  and  Warehouse  Com- 
mission of  the  State  of  Illinois,  do  hereby  certify  that  the  above  is  a 
true  and  correct  copy  of  the  opinion  of  the  Commission  in  the  mat- 
ter of  the  complaint  of  Cowles  &  McKee  versus  the  Chicago,  Rock 
Island  &  Pacific  Railway  Company,  adopted  by  said  Commission  on 
October  7, 1891. 

Witness  my  hand  and  the  seal  of  said  Commissson  at  Springfield, 
Illinois,  on  this  8th  day  of  October,  A.  D.  1891. 

J.  H.  PADDOCK, 

Secretary, 


No.    15 


BEFORE  THE 


STATE  OF  ILLINOIS. 


THE  JACKSONVILLE,  LOUISVILLE  &  ST.  Louis  RAILWAY  Co., 

PETITIONER, 
VS. 

THE  WABASH  RAILWAY  Co., 

RESPONDENTS. 


PETITION  No.  6,  FOB  LEAVE  TO  CROSS. 


Petition  Filed  July  18,  1891. — Answer  Filed  July  29,  1891. — Crossing   Viewed 

July  30,  1891. — Hearing  September  7,  1891 — Opinion  Filed 

and  Ordered  Entered  October  23,  1891. 


APPEARANCES. 

For  Petitioner.  I.  L.  MORRISON, 
For  Respondents,  GEORGE  B.  BURNETT. 


OPINION  OF  COMMISSION, 


107 


OPINION  OF  COMMISSION. 


BY  PHILIPS,  CHAIRMAN: 

This  is  a  petition  by  the  Jacksonville,  Louisville  &  St.  Louis  Rail- 
way Company  for  leave  to  cross  with  its  track  the  main  track  of  the 
respondent,  just  north  of  the  city  of  Litchfield,  in  Montgomery  coun- 
ty. A  crossing  at  the  point  proposed  is  resisted  by  respondent  upon 
the  ground: 

1.  That  petitioner  does  not  show  such  ownership  or  interest  in 
the  St.  Louis  &  Chicago  Railway,  which  it  operates,  as  entitles  it  to 
ask  for  the  crossing;  that  its  only  interest  is  held  under  a  contract 
with  a  receiver  which  may  terminate  at  any  time,  and  will  surely  ter- 
minate when  the  receiver's  functions  are  performed  and  he  is  dis- 
charged. 

2.  That  the  statute  of  1889,  under  which  the  proceeding  is  begun, 
was  intended  to  meet  the  case  of  new  lines   of  road  only,  and  that  a 
crossing  sought  by  an  old  company  in  merely  changing  the  location 
of  its  lines  is  not  within  the  purview  of  the  statute. 

3.  That  petitioner  shows  no  public  necessity  demanding  the  cross- 
ing, but  merely  seeks  to  secure  its  own  convenience. 

Such,  in  substance,  is  our  understanding  of  the  points  made  by  re- 
spondent. 

After  carefully  considering  the  evidence  and  suggestions  of  coun- 
sel, we  have  arrived  at  the  conclusion  that  the  order  for  the  crossing 
should  be  granted.  In  doing  this,  we  do  not  judicially  determine  the 
questions  that  have  been  made  by  respondent.  Not  being  a  court 
for  that  purpose,  we  would  be  unable  to  make  any  adjudication  of 
the  questions  presented  which  would  be  binding  upon  the  parties. 
The  order  which  we  grant  in  the  case  is  merely  preliminary,  and  de- 
termines nothing  except  the  propriety  of  the  crossing  as  affecting  the 
safety  and  convenience  of  the  public.  In  other  words,  the  power  we 
exercise  as  a  Commission  is  one  of  police  regulation  only.  We  do 
not  determine  constitutional  rights,  or  construe  statutes  or  laws  af- 
fecting the  building  of  railroads  in  general.  All  the  questions  that 
are  here  sought  to  be  made,  can  be  made  in  a  court  competent  to  de- 
cide them,  when  the  petitioning  company  goes  into  court  to  condemn 
its  right  of  way  across  the  right  of  way  of  respondent.  There  it  can 
be  determined  judicially  whether  the  petitioner  has  such  an  interest 
as  entitles  it  to  seek  this  crossing,  and  it  can  there  also  be  determined 
whether,  in  case  it  is  found  to  have  such  an  interest,  it  is  otherwise 


108 

in  an  eligble  position,  which  involves  the  other  points  made.  As  a 
mere  matter  of  police  regulation,  we  are  not  able  to  see  that  there  is 
such  impropriety  in  this  crossing  as  would  justify  its  denial,  particu- 
larly in  view  of  the  fact  that  the  petitioning  company  proposes  to  in- 
terlock the  new  crossing  with  suitable  appliances,  and  maintain  and 
operate  the  interlocking  plant  without  expense  to  respondent.  All 
the  Jacksonville,  Louisville  &  St.  Louis  traffic  that  would  pass  this 
proposed  crossing  now  passes  over  respondent's  line  at  another  point 
where  there  is  no  interlocking,  and  where  trains  consequently  must 
stop. 

It  is  therefore  ordered  that  the  petitioner,  the  Jacksonville,  Louis- 
ville &  St.  Louis  Railway  Company,  have  leave  to  cross  with  its 
track  the  track  of  the  respondent  company  at  the  point  designated  in 
its  petition,  to- wit:  Nine  thousand  seven  hundred  and  ten  (9710) 
feet  north  of  the  center  of  the  present  crossing  of  petitioners  track 
and  the  track  of  respondent  south  of  the  city  of  Litchfield,  Montgom- 
ery county,  Illinois,  upon  condition,  however,  that  the  said  Jackson- 
ville, Louisville  &  St.  Louis  Railway  Company  will,  at  its  own  ex- 
penses, construct,  place  in  position,  maintain  and  operate  at  said 
crossing  an  interlocking  machine  such  as  may  be  designated  and  ap- 
proved by  this  Commission. 

It  is  further  ordered  that  the  petitioning  company  pay  all  costs 
and  expenses  of  this  proceeding. 

Adopted  by  the  Commission  October  23,  1891. 


OPINIONS  AND  ORDERS 


ILLIHsTOIS 


RAILROAD  AND  WAREHOUSE  COMMISSION 


INTERLOCKING    CASES. 


PADUOAH  JUNCTION  CROSSING. 

JAKSONVILLE  JUNCTION  CROSSING-. 

BELT  and  O.  &  A.  CROSSING,  Near  Hawthorne. 
CORWITH  CROSSING. 


ISAAC  N.  PHILLIPS, 

JOHN  R.  WHEELER, 
J.   C.    WILLIS, 

Commiss  i oners . 


Ill 


ILLINOIS  INTERLOCKING  ACT,  APPROVED  JUNE  2,  1891. 

An  act  to  protect  persons  and  property  from  danger  at  crossings 
and  junctions  of  railroads  by  providing  a  method  to  compel  protec- 
tion of  the  same. 

SECTION  1 .  Be  it  enacted  by  the  People  of  the  State  of  Illinois, 
represented  in  the  General  Assembly :  That  in  every  case  where 
the  main  tracks  of  two  or  more  railroads  cross  at  a  grade  in  this 
State,  any  company  owning  or  operating  any  one  of  such  tracks, 
whose  managers  may  desire  to  unite  with  others  by  protecting  such 
crossings  with  interlocking  or  other  safety  devices,  may  file  with  the 
Railroad  and  Warehouse  Commission  a  petition  stating  the  facts  of 
the  situation,  and  asking  said  Railroad  and  Warehouse  Commission 
to  order  such  crossing  to  be  protected  by  interlocking  signals,  de- 
vices and  switches,  or  other  safety  appliances.  Said  petition  shall  be 
accompanied  by  a  plat  showing  the  location  of  all  tracks;  and  upon 
the  filing  thereof,  notice  shall  be  given  to  each  other  company  or 
person  owning  or  operating  any  track  involved  in  such  crossing,  and 
the  said  Railroad  and  Warehouse  Commission  shall  thereupon  view 
the  site  of  such  crossing  and  shall,  as  soon  as  practicable,  appoint  a 
time  and  place  for  the  hearing  of  such  petition. 

§  2.  If  the  said  Railroad  and  Warehouse  Commission  shall,  from 
information  obtained  in  any  manner,  have  cause  to  believe  that  any 
such  grade  crossing,as  described  in  section  one  of  this  act,  is  dangerous 
to  the  public  or  to  persons  operating  trains,  and  requires  protection, 
then  it  shall  be  the  duty  of  the  said  Commission,  without  any  peti- 
tion, and  of  its  own  motion,  to  cite  the  several  companies  or  persons 
owning  or  operating  the  railway  tracks  forming  such  crossing,  to 
come  before  said  Commission  at  such  time  and  place  as  may  be 
named,  and  show  cause  why  they  should  not  be  required  to  provide 
such  crossing  with  interlocking  or  other  safety  appliances. 

§  3.  At  the  time  and  place  named  for  1  earing  under  any  petition 
filed  in  pursuance  of  section  one  of  this  act,  or  in  any  citation  issued 
in  pursuance  of  section  two  thereof,  unless  the  hearing  is  for  good 
cause  continued,  said  Railroad  and  Warehouse  Commission  shall 
proceed  to  try  the  question  whether  or  not  the  crossing  shall  be  pro- 
tected by  interlocking,  or  otherwise,  and  shall  give  to  all  companies 
and  parties  interested  an  opportunity  to  be  fully  heard,  and  said 
Commission  shall,  after  such  hearing,  enter  an  order  upon  a  record 
book  or  docket,  to  be  kept  for  the  purpose,  denying  the  petition  or 
discharging  the  citation  if  the  protection  of  such  crossing  as  pro- 
posed is  deemed  unnecessary,  or,  if  said  Commission  shall  be 'of 
opinion,  from  the  evidence  and  facts  produced,  that  the  public  good 
requires  that  such  crossing  be  protected,  then  the  Commission  shall 
enter  an  order  prescribing  an  interlocking  device  or  equipment  for 
such  crossing,  in  case  the  companies  interested  can  not  agree  upon  a 
device,  in  which  order  shall  be  specified  the  kind  of  machine  to  be 


112 

used,  the  switches,  signals  and  other  devices  or  appliances  to  be  put 
in,  and  the  location  thereof,  and  all  other  matters  which  may  be 
deemed  proper  for  the  efficient  protection  of  such  crossing,  and  said 
commission  shall  further  designate,  in  such  order,  the  proportion  of 
the  cost  of  the  construction  of  such  plant,  and  of  the  expense  of 
maintaining  and  operating  the  same,  which  each  of  the  companies  or 
persons  concerned  shall  pay.  In  case,  however,  one  railroad  company 
shall  hereafter  seek  to  cross  at  grade  with  its  track  or  tracks,  the 
track  or  tracks  of  another  railroad  company,  and  the  Railroad  and 
Warehouse  Commission  shflll  determine  that  interlocking  or  other 
safety  appliances  shall  be  put  in,  the  railroad  company  seeking  to 
cross  at  grade  shall  be  compelled  to  pay  all  cost  of  such  appliances, 
together  with  the  expense  of  putting  them  in  and  the  future  main- 
tenance thereof. 

§  4.  It  shall  be  the  duty  of  every  railroad  company  or  person 
owning  or  operating  any  track  involved  in  any  such  crossing  to  com- 
ply with  and  carry  out  fully,  or  unite  with  the  others  in  doing  so, 
any  order  of  the  said  Railroad  and  Warehouse  Commission  made  in 
pursuance  of  any  proceeding  instituted  or  had  under  this  act,  such 
work  to  be  completed  within  ninety  days  after  such  order  is  made 
unless  the  Railroad  and  Warehouse  Commission  shall  for  good  cause 
shown  extend  the  time;  and  when  any  such  plant  shall  have  been 
completed  and  made  ready  for  use,  it  shall  be  the  duty  of  the  com- 
panies or  persons  concerned  to  notify  the  said  Railroad  and  Ware- 
house Commission  thereof,  whereupon  said  Commission  shall  inspect 
or  cause  to  be  inspected  the  said  completed  plant  in  the  same  manner 
as  now  provided  in  the  act  upon  that  subject,  approved  June  3,1887; 
and  if,  upon  such  inspection,  the  said  plant  is  deemed  to  be  well  con- 
structed and  suitable  and  sufficient  for  the  purpose,  the  said  Railroad 
and  Warehouse  Commission  shall  issue  a  permit  empowering  the 
several  companies  or  persons  owning  or  operating  the  tracks  involved 
therein  to  run  such  crossing  without  stopping,  under  such  rules  and 
regulations  as  may  be  in  force,  or  may  thereafter  be  adopted  by 
the  said  Commission,  any  law  now  in  force  upon  the  subject  of  stop- 
ping trains  at  railway  crossings  to  the  contrary  notwithstanding. 

§  5.  Any  company,  person  or  corporation  refusing  or  neglecting 
to  comply  with  any  order  made  by  the  said  Railroad  and  Warehouse 
Commission  in  pursuance  of  this  act  shall  forfeit  and  pay  a  penalty 
of  $200  for  each  week  of  such  refusal  and  neglect,  the  same  to  be  re- 
covered in  an  action  of  debt  in  the  name  of  the  People  of  the  State 
of  Illinois,  and  to  be  paid,  when  collected,  into  the  county  treasurer 
of  any  county  where  any  such  suit  may  be  tried. 

§  6.  All  expenses  incurred  in  any  proceeding  under  this  act  shall 
be  paid  by  the  railway  companies  concerned,  in  equal  portions,  upon 
bills  to  be  rendered  by  the  secretary  of  said  Commission. 

§  7.  Every  junction  of  two  or  more  railroad  tracks,  whether  the 
tracks  joining  each  other  are  owned  by  different  companies  or  by  the 
same  company,  shall  be  taken  and  deemed  to  be  a  crossing  within 
the  meaning  of  this  act:  Provided,  that  this  section  shall  not  apply 
to  switch,  spur  or  side  tracks. 


BEFORE  THE 


STATE  OF  ILLINOIS. 


THE  CHICAGO  &  ALTON  RAILROAD  Co., 

PETITIONER, 


VS. 


THE  ILLINOIS  CENTRAL  RAILROAD  Co., 

AND 
THE  WABASH  RAILROAD  Co., 

RESPONDENTS. 


PETITION  NO.   6— PROTECTION  OF    CROSSING  AT  PADUCAH 

JUNCTION. 


APPEARANCES. 

For  Chicago  &  Alton  Railroad  Co.— WM.  BROWN. 

For  Illinois  Central  Railroad  Co.— JOHN  MAYO  PALMER. 

For  Wabash  Railroad  Co.— B.  A.  WINSTON. 


— 8O. 


115 


OPINION  OF  THE  COMMISSION. 


BY   PHILLIPS,  CHAIRMAN. 

This  is  a  petition,  filed  under  the  interlocking  act  of  1891,  by  the 
Chicago  &  Alton  Railroad  Company.  The  Wabash  Railroad  Com- 
pany and  the  Illinois  Central  Railroad  Company  are  made  defend- 
ants in  the  petition.  The  prayer  of  the  petition  is  that  this  Com- 
mission will  order  the  crossing  of  the  main  tracks  of  the  three 
companies  named,  at  what  is  called  Paducah  Junction,  near  Pontiac, 
in  the  county  of  Livingston,  to  be  interlocked. 

The  companies  all  agree  that  the  crossing  in  question  is  a  proper 
one  for  interlocking  under  the  statute,  and  that  the  Commission  may 
designate  the  device  to  be  used.  They,  however,  widely  disagree  as 
to  the  basis  on  which  the  cost  of  the  interlocking  and  the  expense 
of  its  future  maintenance  and  operation  shall  be  apportioned  among 
the  companies. 

The  tracks  of  the  several  companies  at  this  place  are  so  located  as 
to  form  a  triangle,  each  road  crossing  the  other  two,  thus  forming 
three  distinct  main  track  crossings,  ranging  from  six  hundred  to  one 
thousand  feet  apart.  The  Alton  tracks  extend  from  northeast  to 
southwest;  the  Wabash  track  from  northwest  to  southeast,  and  the 
Central  track  from  southwest  to  northeast.  The  Alton  road  is  the 
senior  of  the  three,  having  been  built  long  before  the  others.  The 
Wabash  is  next  in  point  of  time,  and  the  Central  was  built  last.  The 
traffic  over  the  Alton  at  this  point  is  heavy,  and  it  has  here  a  double 
track.  The  Wabash  runs  but  three  regular  trains  a  day  each  way 
over  this  crossing.  The  Central  also  runs  three  daily  trains  each 
way.  Upon  the  south  side  of  the  Central  track,  about  half  way  be- 
tween the  crossing  of  the  Alton  and  the  Wabash,  is  the  Pontiac  sta- 
tion building,  at  which  all  Central  trains  stop.  There  is  also  upon 
the  line  of  the  Central,  a  short  distance  east  of  its  crossing  with  the 
Wabash,  a  coal  mine,  at  which  all  Central  trains  stop  for  coal.  The 
Alton  and  Wabash  trains  make  no  regular  stops  at  this  place,  except 
those  made  for  the  crossings. 

We  confess  the  question  of  apportioning  the  cost  and  expense  of 
this  interlocking  among  the  companies  has  given  us  much  trouble. 
This  and  the  other  cases  now  under  consideration,  are  the  first  that 
have  arisen  under  the  statute.  It  has  been  insisted  that  the  Com- 
mission should  at  the  outset  lay  down  some  general  principle,  in  ac- 
cordance with  which  the  cost  and  expenses  of  interlocking  are  to  be 


116 

apportioned  under  this  act,  thus  making  this  first  batch  of  cases  de- 
cisive of  all  that  may  hereafter  arise.  While  we  recognize  that  such 
a  method  would  greatly  simplify  the  subject  and  save  much  labor,  we 
see  many  difficulties  in  the  way  of  adopting  any  of  the  general  rules 
of  determination  that  have  been  proposed. 

It  is  contended  by  the  Alton  company  that  seniority  should  solve 
the  whole  question.  It  is  urged  that  the  road  first  upon  the  ground, 
which  once  had  the  right  of  way  unobstructed  by  the  crossing,  should 
pay  no  cost  or  expense,  and  that  the  junior  road,  whose  track  has- 
been  built  across  that  of  the  senior,  thus  occasioning  the  necessity 
for  stopping  trains,  and  the  danger  incident  to  the  crossing,  should 
be  compelled  to  bear  the  whole  burden  of  protecting  the  crossing  by 
an  interlocking  device.  It  is  said  that  in  making  contracts  for  cross- 
ings in  the  present  day  it  is  customary  to  require  the  junior  company 
to  pay  all  costs  and  expenses,  including  the  wages  of  gateman  or 
flagman  when  needed.  It  is  further  said  that  only  such  matters  as 
were  in  contemplation  when  condemnation  of  right  of  way  across 
other  tracks  took  place,  can  be  deemed  to  have  been  settled  by  the 
judgment  of  the  court,  and  that  in  the  case  of  these  crossings,  made 
before  interlocking  came  into  use,  the  burden  of  equipping  with  the 
new  appliance  should  be  visited  upon  the  junior  company  in  the 
same  manner  that  it  is  customary  at  the  present  time  to  allot  expenses 
by  contract. 

It  is  insisted  the  principle  of  seniority  contended  for  is  recognized 
in  the  statute  under  which  this  proceeding  is  had.  That  statute  pro- 
vides that  "in  case  one  railroad  company  shall  hereafter  seek  to  cross 
at  grade  with  its  track  or  tracks  the  track  or  tracks  of  another  rail- 
road company,  and  the  Railroad  and  Warehouse  Commission  shall 
determine  that  interlocking  or  other  safety  appliances  shall  be  put  inr 
the  railway  company  seeking  to  cross  at  grade  shall  be  compelled  to 
pay  all  the  cost  of  such  appliances,  together  with  all  the  expense  of 
putting  them  in  and  the  future  maintenance  thereof."  It  is  argued, 
that  since,  by  the  terms  of  this  statute,  roads  causing  new  crossings 
are  to  bear  the  whole  burden,  an  application  of  the  same  principle 
would  require  that  crossings  already  in  existence  should  be  inter- 
locked upon  the  same  principle,  all  expenses  being  cast  upon  the 
last  comer. 

The  contention  of  both  the  Central  and  the  Wabash  companies  is 
that  first  cost  of  machine  should  be  borne  equally,  but  that  the  cost 
of  subsequent  operation,  which  is  far  the  most  important  item,  should 
be  apportioned  among  the  companies  according  to  the  number  of 
trains  which  pass  over  the  crossing  on  each  line.  This,  it  is  con- 
tended, would  be  equitable  for  the  reason  that  it  would  assess  the 
cost  and  expense  upon  the  basis  of  benefits.  Every  stopping  of  a 
train  entails  expense  in  wear  and  tear  of  machinery,  in  consumption 
of  fuel,  and  in  delay;  and  from  this  it  is  argued  that  the  benefit  re- 
ceived by  a  company  is  in  direct  proportion  to  the  number  of  trains 
run  by  that  company,  and  which  are  relieved,  by  the  interlocking, 
from  the  statutory  stop.  Hence  it  is  said  maintenance  and  operation 
should  be  paid  for  in  proportion  to  the  number  of  trains  run. 


117 

Another  basis  which  has  been  propounded  to  us  in  another  case 
now  before  us,  and  which  may  be  considered  here,  is  that  each  com- 
pany should  pay  both  of  original  cost  and  expense  of  operation  in 
proportion  to  the  number  of  main  tracks  which  it  has  in  use  at  the 
crossing.  The  reasons  for  such  a  division  have  not  been  very  elab- 
orately stated  before  us.  In  the  particular  case  where  the  theory 
was  advanced,  we  have  thought  the  method  did  not  work  any  injus- 
tice, and  have  accordingly  used  it  for  that  case  only.  (See  opinion 
in  C.  &  A.  R.  R.  Co.  vs.  A.,  T.  &  S.  Fe  R.  R.  Co.,  petition  for  pro- 
tecting crossing  at  Corwith.) 

In  addition  to  the  above  methods,  we  may  here  name  a  fourth, 
which  comes  to  the  notice  of  the  Commission  by  reason  of  its  having 
been  actually  used  by  certain  companies  in  the  case  of  a  very  com- 
plicated crossing  at  Stewart  avenue  in  Chicago,  now  being  interlocked 
by  agreement  of  parties.  The  fourth  method  is  to  assess  upon  each 
company  the  cost  of  that  portion  of  the  device  which  pertains  to  its 
own  particular  tracks  and  switches.  That  is  to  say,  each  company 
pays  for  the  construction  of  its  own  derails  and  signals,  and  for  the 
pipes,  attachments,  wires,  etc.,  by  which  the  same  are  operated. 
Then  the  cost  of  the  operating  machine,  tower  house,  and  other  gen- 
eral expenses  which  pertain  to  all  the  roads  alike,  including  wages 
of  men,  are  assessed  among  the  companies  on  the  basis  of  levers, 
each  road  paying  that  portion  of  the  whole  expense  which  the  num- 
ber of  levers  required  to  work  its  own  derails  and  signals  bears  to 
the  total  number  of  levers  used  to  operate  the  entire  plant.  While 
none  of  the  counsel  in  the  present  case  have  propounded  this  latter 
theory,  the  Commission,  in  fact,  took  it  into  consideration  in  connec- 
tion with  all  these  cases,  knowing  it  had  been  adopted  in  practice  by 
several  of  the  best  railroad  men  in  the  State. 

The  result  of  our  deliberations  is  that  we  find  ourselves  unable  to 
adopt  any  one  of  the  rules  stated  as  an  unyielding  principle  of  de- 
termination for  all  cases.  Some  force  may  be  allowed  to  each  of 
them;  but  any  of  them,  if  universally  applied,  would  in  many  cases 
work  injustice. 

Take  first  the  principle  of  seniority;  and  here  we  remark  that 
where  condemnation  proceedings  have  been  had  at  the  time  of  es- 
tablishing the  crossing,  the  damages  allowed  would,  in  legal  con- 
templation, cover  all  injury  to  the  line  crossed  which  could  be 
regarded  as  proper  legal  damages.  The  use  declared  for  across  the 
right  of  way  of  the  old  company  would,  it  seems  to  us,  be  such  as 
would  call  for  the  allowance  of  all  damages  that  could  in  any  event 
arise.  We  can  think  of  no  damage  obtainable  by  condemnation  in 
any  case  that  would  not  arise  by  the  mere  fact  of  building  the  one 
track  across  the  other.  It  is  held  in  Illinois  that  damages  which 
may  accrue  from  collisions  and  accidents  at  crossings  are  too  remote 
and  speculative  to  form  a  subject  of  recovery  in  condemnation.  (P. 
&  P.  U.  Ry.  Co.  vs.  P.  &  F.  Ry.  Co.,  105  111.,  110.)  So  likewise  it  is 
held  that  damages  which  arise  from  the  statutory  regulation  for  the 
stopping  of  trains  at  crossings,  is  not  such  as  the  law  will  recognize 


118 

(C.  &  A.  K.  R.  Co.  vs.  J.  L.  &  A.  Ry.  Co.,  105  111.,  388);  because  the 
statute  is  said  to  be  a  mere  police  regulation,  which  may  be  changed 
at  any  time;  and  no  company  is  entitled  to  compensation  for  obey- 
ing the  law. 

Under  the  authority  of  these  cases  it  may  be  questioned  whether  in 
condemnation  proceedings  the  cost  of  interlocking  could  be  consid- 
ered any  more  than  could  the  question  of  the  stopping  of  trains.  This 
Commission  now  proceeds  under  the  act  of  189] ,  which  is  purely  a 
police  regulation.  It  is  the  public  interest  that  is  to  be  subserved 
in  these  eases,  by  lessening  the  danger  to  life  and  property  and  by 
expediting  travel.  Interlocking  is  a  burden  cast  by  the  police  power 
of  the  state  upon  the  companies  solely  for  the  public  good,  not  for 
the  pecuniary  benefit  of  the  companies  themselves.  If  its  cost  would 
not  be  in  any  case  within  the  purview  of  condemnation  proceedings, 
it  can  hardly  be  contended  that  priorty  affects  the  equities  between 
the  companies  on  the  ground  stated  that  interlocking  appliances 
were  not  in  use  when  the  condemnation  was  had. 

Nor  does  the  contention,  in  our  judgment,  derive  any  additional 
force  from  the  fact  that  in  the  case  of  the  Paducah  crossing  the  lines 
of  the  Wabash  and  the  Central  crossed  by  a  verbal  license  from  the 
Alton  company  without  any  damage  having  been  paid  or  any  bur- 
dens imposed.  The  Alton  could  have  required  condemnation  and 
the  assessment  of  damages,  if  it  had  seen  tit.  It  did  not  do  this,  and 
we  are  unable  to  see  that  the  status  of  the  companies  before  us  is 
now  materially  different  on  that  account.  Interlocking,  it  is  true, 
has  been  recently  introduced;  a  legal  method  of  compelling  its  use  is 
now  for  the  first  time  prescribed  by  law.  This  added  police  regula- 
tion is  in  accordance  with  the  modern  tendency  alike  shown  by  legis- 
latures and  railroad  managers,  to  secure  greater  safety  and  speed, 
and  generally  better  railroad  practice. 

The  seniority  theory  would  be  wholly  impracticable  in  cities  where 
tracks  are  concentrated,  and  where  a  single  interlocking  plant  may 
cost  from  $50,000  to  $100,000.  Here  to  make  the  youngest,  and  pre- 
sumably the  weakest  road,  pay  the  whole  expense,  would  be  little 
short  of  ruinous. 

For  the  reasons  given,  seniority  can  not  be  taken  as  a  basis  of  de- 
termination, discarding  other  considerations.  There  may  arise  cases 
where  it  will  constitute  an^  element  proper  to  be  considered;  but, 
speaking  generally,  if  the  Commission  finds  two  railroads  in  opera- 
tion upon  the  ground,  without  special  contract  burdens  as  between, 
themselves,  they  must  be  dealt  with  on  a  basis  of  practical  equality. 

In  the  proposition  to  make  each  company  pay  in  proportion  to  the 
number  of  trains  passing  the  crossing,  we  see  somewhat  more  equity 
than  we  have  found  in  the  rule  of  seniority.  But  will  the  train  basis 
do  as  an  infallible  principle  of  determination  for  all  cases?  Take  the 
case  of  a  great  trunk  line  doing  a  heavy  traffic,  which  has  been  recently 
crossed  by  some  new  line  which  does  very  little  business;  the  one 
may  run  a  hundred  trains  per  day  and  the  other  not  more  than  two. 
Would  not  the  train  basis  work  a  very  palpable  injustice  in  such  a 
case?  The  fact  that  the  junior  road  has  crossed  the  older  road  ere- 


119 

ates  the  entire  necessity  for  interlocking,  and  for  that  necessity  the 
new  road  is  certainly  as  much  responsible  as  the  old  one;  more  so,  if 
its  junior  position  is  to  have  weight.  Yet,  if  the  train  basis  is  used, 
the  new  road  will  be  practically  exempt  from  operating  expense.  The 
fact  that  one  road  does  a  lignt  business,  does  not  decrease  the  cost  of 
the  machine  to  be  used,  nor  the  expense  of  its  maintenance  and 
operation.  Under  this  theory  of  apportioning  expenses,  if  specula- 
tors build  a  new  and  useless  line  of  road  for  speculative  purposes,  as 
has  been  too  much  done  in  this  state,  the  very  fact  that  the  new  line 
is  useless  and  does  no  business,  would  enable  its  projectors  to  compel 
other  companies,  which  do  a  substantial  service  to  the  public,  to 
maintain  and  operate  interlocking  at  all  the  crossings.  This  would 
certainly  be  unjust.  The  presence  of  the  crossing  tracks  renders  in- 
terlocking necessary,  and  the  public  benefit  arising  from  increased 
safety  to  life  and  property  and  greater  expedition  in  travel  is  the 
principal  fact  to  be  regarded,  not  the  pecuniary  benefit  to  the  com- 
panies. 

Besides,  a  train  basis  for  apportioning  expenses  would  constantly 
fluctuate.  The  time  cards  of  the  companies  would  furnish  no  ade- 
quate basis  for  such  an  apportionment,  because  many  roads  run  more 
wild  trains  than  regular  ones,  and  any  road  may  run  twice  as  many 
trains  in  one  month  as  it  runs  in  the  next.  Under  the  train  basis 
the  question  would  constantly  be  open  for  readjustment,  and  the  un- 
certain situation  in  which  the  order  would  be  left  would  invite  con- 
stant wrangling  between  the  companies  as  to  the  proportions  to  be 
paid. 

Under  all  the  circumstances  we  can  not,  therefore,  adopt  the  tram 
basis  as  a  decisive  principle  to  be  applied  in  all  cases. 

We  come  now  to  the  proposition  to  apportion  expenses  of  opera- 
tion upon  the  number  of  main  tracks  in  use  by  each  company  at  the 
point  of  crossing.  This,  it  appears  to  us,  would  in  many  cases  be  in- 
equitable. It  seems  to  the  Commission  only  a  clumsy  way  of  appor- 
tioning expenses  upon  the  volume  of  traffic,  and  as  such  the  train 
basis  would  be  superior  to  it;  and  "wheelage"  would  still  better  ap- 
ply the  principle  underlying  this  method.  Cases  no  doubt  exist 
where  the  road  with  a  double  track  at  the  crossing  point  does  less 
actual  business  than  another  with  a  single  track.  The  actual  use  of 
a  machine,  and  the  activity  of  those  operating  it,  might  be  more  fre- 
quently called  forth  by  a  single  track  road  than  by  a  double  one. 
Again,  a  road  might  have  a  thousand  miles  of  double  track  else- 
where, and,  at  the  particular  point  of  crossing,  if  in  some  city  or 
other  crowded  place,  might  have  a  single  track. 

We  can  understand  that  if  the  tracks,  sidings  and  switches  of  one 
company  be  so  arranged  that  a  very  large  proportion  of  the  cost  of 
the  original  construction  is  occasioned  thereby,  it  might  be  equitable 
to  consider  that  circumstance  in  apportioning  the  original  cost  of  the 
machine,  and  also  the  cost,  of  repairs;  but  the  same  reason  would  not 
exist  in  many  cases  for  allowing  that  circumstance  to  control  the  ex- 
pense of  operating.  The  wages  of  operators  would  be  the  same  even 
though  in  the  course  of  a  day  they  move  a  few  more  levers  for  one  of 


120 

the  companies  than  for  the  other.  Then,  too,  the  actual  working  of 
the  machine  to  accommodate  a  company's  traffic  might  not  bear  a 
direct  ratio  to  the  number  of  protected  points  on  such  company's 
right  of  way. 

If  we  should  apply  here  the  principle  of  seniority,  the  Alton  would 
pay  nothing.  The  Wabash  could  also  plead  its  seniority  over  the 
Central,  and,  carrying  the  principle  to  its  logical  outcome,  we  should 
have  the  Central  paying  the  whole  cost  and  expense  of  the  machine 
and  its  operation.  It  is  fair  to  consider  also  in  this  connection  that 
the  Central  company  can,  by  interlocking,  be  saved  but  one  stop  for 
its  trains,  which  is  that  now  made  by  the  trains  bound  eastward  be- 
fore crossing  the  Alton  tracks.  All  other  statutory  stops  are  made  by 
stopping  for  the  station  and  at  coal  chutes.  Thus  the  company  which 
gets  the  least  benefit  would  pay  the  whole  expense.  If  we  should 
adopt  the  train  basis  for  apportioning  costs  and  expenses,  we  should 
have  the  senior  road,  for  which  entire  exemption  is  claimed  under 
the  opposing  theory,  paying  nearly  the  whole  cost  of  operation  and 
maintenance.  If  we  should  adopt  the  principle  of  apportioning  ac- 
cording to  the  number  of  main  tracks,  then  the  Alton  would  pay  one- 
half  of  the  maintenance  and  operation  and  each  of  the  others  one- 
fourth.  If  we  should  apportion  first  cost  according  to  the  number  of 
derails,  signals,  and  their  connections  actually  located  on  each  line, 
and  other  expenses  according  to  levers  in  the  tower,  as  has  been  done 
in  the  crossing  agreement  for  Stewart  avenue  above  referred  to,  we 
should  then  have  here  again  the  anomaly  of  the  Central  company, 
which  derives  the  least  benefit  from  this  machine,  paying  the  largest 
share  both  of  the  cost  of  construction  and  of  the  expense  of  opera- 
tion; for  according  to  the  plan  prepared  for  this  crossing,  the  Cen- 
tral road  has  a  total  of  thirteen  levers,  while  the  Alton  has  but 
twelve,  and  the  Wabash  eight.  Hence,  on  this  basis,  the  Central 
would  pay  thirteen  thirty-thirds,  the  Alton  twelve  thirty-thirds,  and 
the  Wabash  eight  thirty- thirds. 

Turn  which  way  we  may,  difficulties  are  encountered  in  attempting 
to  apply  any  one  of  the  principles  we  have  thus  had  under  consider- 
ation. At  the  same  time,  we  admit  that  all  of  these  might  properly 
be  considered  in  cases  where  they  have  special  weight. 

If  we  were  compelled  to  adopt  a  rule  to  be  followed  unswervingly 
in  all  cases — a  thing  we  should  not  regard  as  good  policy  or  as  tend- 
ing to  justice — we  are  free  to  say,  after  very  careful  deliberation, 
that  rule  would  be  to  apportion  all  cost  and  expense  among  the  sev- 
eral companies  whose  tracks  are  involved,  equally,  share  and  share 
alike.  But  since  this  would,  in  exceptional  cases,  work  hardships, 
as  is  notably  the  case  at  the  Corwith  crossing  now  pending  before 
us,  we  are  unwilling  to  adopt  the  rule  of  equality  as  an  inflexible 
and  decisive  one  to  be  applied  in  all  cases.  We  are,  however,  con- 
vinced that  it  would  be  fair  to  assume  at  the  outset  of  every  case  that 
both  or  all  the  companies  concerned  are  equal  in  their  liability  to 
bear  this  new  burden  cast  upon  them  by  the  State  for  the  public 
good  in  the  exercise  of  the  police  power.  If  highly  exceptional  cir- 
cumstances exist,  which  are  claimed  to  be  sufficient  to  take  any  case 


out  of  the  principle  of  equality,  it  should  be  for  the  company  claim- 
ing the  exemption  to  show  these  circumstances;  but  neither  benefits 
nor  hardships  to  companies  can  receive  as  large  a  measure  of  con- 
sideration as  the  public  interest  and  the  public  good,  which  latter  it 
is  the  great  function  of  this  Commission  to  subserve,  and  the  sole 
object  of  this  statute  to  promote. 

In  the  case  now  under  consideration,  we  have  concluded  the  facts 
do  not  warrant  us  in  departing  from  the  principle  of  equal  payment 
by  the  companies. 

An  order  will  therefore  be  entered  by  the  Secretary  in  this  pro- 
ceeding, providing  that  the  crossing  described  in  the  petition,  and 
also  the  crossing  of  the  Wabash  and  Central  tracks  near  the  other 
two,  be  all  interlocked  b)'  the  three  companies  concerned,  by  means 
of  a  single  interlocking  system,  and  that  each  of  said  three  companies 
pay  one-third  of  the  original  cost  of  the  device  used,  and  one-third 
of  the  expense  of  the  future  maintenance  and  operation  of  the  same. 


FINAL  ORDER  OF  THE  COMMISSION. 

THURSDAY,  December  10,  1891. 

At  a  session  of  the  Railroad  and  Warehouse  Commission  of  the 
State  of  Illinois,  held  at  its  office  in  Springfield,  Illinois,  on  this  day 
— present,  Isaac  N.  Phillips,  John  R  Wheeler,  and  J.  C.  Willis, 
Commissioners,  J.  H.  Paddock,  Secretary,  and  Charles  Hansel,  Con- 
sulting Engineer — the  following  proceedings  were  had  in  this  cause: 

And  now  this  petition  having  come  on  for  final  hearing  and  de- 
termination before  the  Commission  this  10th  day  of  December,  1891, 
and  the  Commission  having  considered  the  evidence  taken  herein, 
the  agreements  made  by  the  parties  through  their  respective  counsel, 
and  the  arguments  of  counsel  made  before  the  Commission  at  a 
former  session,  and  being  fully  advised  in  the  premises,  doth  find: 

That  the  public  good  requires  that  the  crossings  formed  at  the 
said  Paducah  Junctipn  by  the  tracks  of  the  Chicago  &  Alton  Rail- 
road Company,  the  Wabash  Railroad  Company,  and  the  Illinois 
Central  Railroad  Company  be  protected  and  operated  by  an  inter- 
locking device  or  machine;  that  it  would  be  just  and  equitable  for 
each  of  the  said  three  companies  to  pay  one-third  part  of  the  entire 
original  cost  of  such  device  and  its  several  parts,  attachments,  and 
appurtenances,  and  one-third  part  of  the  expense  of  maintaining  the 
same  in  good  repair  and  order,  and  also  one-third  part  of  the  expense 
of  operating  such  device. 

It  is  therefore  ordered  by  the  Commission  that  the  said  companies, 
to- wit:  the  Chicago  &  Alton  Railroad  Company,  the  Wabash  Rail- 
road Company,  and  the  Illinois  Central  Railroad  Company,  forthwith 
proceed  to  protect  said  crossings  by  an  interlocking  device  of  the 
kind  and  description  shown  upon  the  blue  print  drawing  and  plan 
which  is  attached  hereto,  and  which  is  hereby  made  part  and  parcel 
of  this  order,  f 

t  The  plan  referred  to  here  appears  upon  the  docket  in  connection  with,  and  as  part  of, 
the  final  order,  but  it  is  not  practicable  to  show  the  same  in  the  printed  copies. 


122 

EXPLANATION   OF   PLAN. 

It  is  further  ordered  that  for  the  better  understanding  of  the  said 
plan,  the  following  explanations  thereof  be  observed: 

The  position  of  derails  is  indicated  by  a  shaded  point,  the  location 
being  fixed  by  measurement  indicated  by  figures. 

Main  track  routes  are  governed  by  the  top  blade  of  high  sema- 
phore signal  placed  on  engineman's  side  of  the  track  which  it  gov- 
erns. 

The  back-up  and  switching  movements  are  goverened  by  dwarf 
semaphore  signals. 

The  distance  of  signal  from  point  it  governs  is  fixed  by  figures. 
Its  position  may  be  shifted  laterally  if  the  space  between  tracks  i& 
not  sufficient  to  receive  the  post  without  danger. 

In  case  it  is  not  desired  to  operate  switches  marked  on  plan  as 
"worked  or  bolt-locked,"  then  the  lower  blade  governing  such  switch 
may  be  omitted. 

GENERAL   SPECIFICATIONS. 

It  is  further  ordered  that  the  said  interlocking  device  and  machine 
be  constructed  by  said  companies  in  accordance  with  the  following 
general  specifications,  to- wit: 

1.  The  switches,  derails,  and   signals   must  be   operated   from  a 
central  tower  house,  as  indicated  on  blue  print  plan. 

2.  All  signals  must  be  of  semaphore  type. 

3.  All  switches  and  locks  must  be  worked  by  one-inch  iron  pipe, 
plugged  and  riveted  at  joints,  and  carried  on  anti- friction  pipe  car- 
riers fixed  on   oak  posts   placed   firmly  in  the  ground  not  to  exceed 
eight  feet  apart.     Each  line  of  pipe  must  be  automatically  compen- 
sated. 

4.  All  signals  must  be  worked  with  two  lines  of  wire. 

5.  All  signal  blades  must  be  so  constructed  as  to  go  to  the  danger 
position  in  case  of  breakage  of  connections  anywhere  between  the 
operating  lever  and  blade. 

6.  All  facing  point  switches  must  be  fitted  with  duplex  facing 
point  locks. 

7.  All  cranks  and   pipe   compensators  must  be  fixed  on  founda- 
tions firmly  imbedded  in  concrete. 

8.  All  cranks,  compensators,   chain  wheels,  and  main  pipe  lines- 
must  be  boxed. 

9.  All  derails  and  operated  switches  must  be  provided  with  de- 
tector bar. 

10.  All  switch  points  must  work  on  iron  plates  so  arranged  as  to- 
keep  the  track  at  switch  points  accurately  to  gauge. 

11.  All  connections  must  be  accurately  adjusted  so  as  to  make  it 
impossible  to  give  a  clear  signal  with  the  switch  open  or  partially 
open. 


123 

12.  Each  part  of  the  machine  and  connections  must  be  made  suffi- 
ciently strong  for  the  work  it  is  to  perform. 

13.  All  movements  of  switches  and  signals  must  be  made  by  levers 
arranged  and  interlocked  so  as  to  prevent  the  operator  from  giving 
conflicting  signals. 

14.  The  material  and  workmanship  must  be  in  all  respects  first- 
class,  and  the  entire  plant   must  be  constructed  in  accordance  with 
the  best  practice  in  signaling,  and  the  plant,  as  a  whole,  must,  when 
finished,  be  complete  and  perfect,  and  in  every  way  fit  for  the  pur- 
pose of  its  construction,  and  all   details  not  herein  specified,  which 
may  be  found  necessary  to  the  completeness  and  efficiency  of  the 
machine  and  plant,  shall  be  supplied  by  the  said  companies  the  same 
as  though  they  were  herein  particularly  set  forth. 

15.  The  machine  to  be  used  for  the  operation  and  interlocking  of 
the  signals,  switches,  and  derails  must  be  approved  by  this  Commis- 
sion before  construction  was  commenced,  and  the  entire  plant  must 
be  constructed  subject  to  the  approval  of  the  Railroad  and  Warehouse 
Commission,  and  permit  duly  issued,  as  required  by  statute  before  it 
is  put  into  operation. 

It  is  further  ordered  that  the  said  three  companies  pay  equally  one- 
third  each  of  the  original  cost  of  the  construction  of  the  said  device 
and  machine,  one- third  each  of  the  cost  of  the  future  maintenance  of 
said  machine  in  good  order  and  repair,  and  one-third  each  of  the  ex- 
pense of  the  operation  of  said  machine. 

It  is  further  ordered  that  the  said  companies  shall  construct  the 
said  device  and  machine  and  have  the  same  in  order  and  ready  for 
use  within  ninety  days  from  the  entering  of  this  order  (December  10, 
1891)  as  provided  by  statute. 


BEFORE  THE 


STATE  OF  ILLINOIS. 


THE  CHICAGO,  PEOBIA  AND  ST.  Louis  RAILWAY  Co. 

THE  CHICAGO  &  ALTON  RAILROAD  Co. 

THE  WABASH  RAILROAD  Co. 


CITATION  No.  4.— PROTECTION  OF  CROSSING  AT  JACK- 
SONVILLE  JUNCTION. 


APPEARANCES. 

For  Chicago.  Peoria  &  St.  Louis  Railway  Co. — I.  L.  MORRISON. 

For  Chicago  &  Alton  Railroad  Co.— WM.  BROWN. 

For  Wabash  Railroad  Co.— B.  A.  WINSTON. 


127 


OPINION  OF  THE  COMMISSION. 


BY  PHILLIPS,  CHAIRMAN. 

This  is  a  citation  issued  by  the  Railroad  and  Warehouse  Commis- 
sion to  each  of  the  three  companies  named  in  the  title,  under  the  act 
approved  June  2,  1891,  commanding  said  companies  to  show  cause 
why  the  crossing  formed  by  their  respective  main  tracks  at  Jackson- 
ville Junction,  Morgan  county,  Illinois,  should  not  be  protected  by  in- 
terlocking or  other  proper  appliances.  The  counsel  of  the  respective 
companies  appeared  before  the  Commission  November  4,  1891,  and 
agreed  that  the  crossing  might,  by  order  of  the  Commission,  be  inter- 
locked, and  that  the  Commission  might  fix  in  the  order  the  kind  of 
device  to  be  used.  They  further  agree  that  the  original  cost  of  the 
appliance  to  be  used  might  be  assessed  upon  the  companies  equally, 
one-third  to  each. 

These  mutual  agreements  of  the  companies  relieve  the  Commission 
from  the  decision  of  all  questions  except  that  as  to  the  apportion- 
ment of  the  expense  of  future  maintenance  and  operation.  Upon  this 
latter  question  the  Chicago  &  Alton  and  the  Chicago,  Peoria  &  St. 
Louis  companies,  through  their  respective  counsel,  agree  that  the 
order  of  the  Commission  may  apportion  the  expense  of  operation  and 
maintenace  in  the  same  ratio  as  that  of  the  original  cost;  namely: 
one- third  to  each  company. 

On  this  point,  the  counsel  for  the  Wabash  Company  contends  for 
what  would,  in  the  present  case,  be  a  slightly  different  division  of  the 
expense  of  operation  He  contends  this  expense  should  be  distributed 
in  proportion  to  the  number  of  trains  run  over  the  roads  respectively. 
Since,  however,  it  appears  from  the  time  cards  of  these  roads  on  file 
that  the  number  of  regular  trains  of  the  Alton  and  Wabash  compan- 
ies are  equal,  nineteen  each  daily,  and  those  of  the  Chicago,  Peoria 
&  St.  Louis  within  one  of  that  number,  being  eighteen  daily,  there 
seems  no  reason  to  discuss  the  feasibility  or  equity  of  the  train  basis 
for  dividing  expenses  in  connection  with  this  citation.  The  Chicago, 
Peoria  &  St.  Louis  is  the  company  which  would  profit  here  by  the 
adoption  of  the  train  basis  for  operating  expenses,  and  that  company 
consents  to  pay  one  third.  A  letter  of  Mr.  Hayes,  general  manager 
of  the  Wabash.  now  on  file  in  the  case,  concedes  the  propriety  in  this 
case  on  his  own  basis  of  assessing  the  operating  expense  one-third  to 
each  road. 


128 

The  companies  are,  therefore,  practically  at  an  agreement  on  the 
division  of  expenses  for  this  crossing,  though  they  disagree  widely  as 
to  what  principle  should  be  applied  by  the  Commission  generally  in. 
such  cases.  The  agreements  made  contemplate  only  this  particular 
crossing,  and  are  in  the  nature  of  a  compromise.  This  case  can  not, 
therefore,  be  fairly  urged  as  a  precedent,  nor  can  the  agreements 
made  be  held  to  estop  these  companies,  or  any  of  them,  from  main- 
taining in  other  cases,  principles  which  would  lead  to  a  different  re- 
sult. We  have  discussed  the  different  theories  held  by  these  com- 
panies as  to  what  is  a  proper  basis  of  distribution  of  expense  in  con- 
nection with  another  case  now  before  us,  wherein  such  diverse 
theories  have  been  insisted  upon.f 

The  payment  of  one-third  of  all  cost  and  expense  by  each  company 
at  this  place,  while  finding  a  sufficient  basis  in  the  mutual  agreements 
of  the  parties,  seems  to  the  Commission,  at  the  same  time,  to  be  fair, 
reasonable,  and  just,  under  all  the  circumstances  of  the  case. 

An  order  will  therefore  be  entered  by  the  Secretary  for  the  protec- 
tion of  said  crossing  by  interlocking,  and  providing  that  the  original 
cost  and  the  expense  of  future  maintenance  and  operation  of  said  in- 
terlocking plant,  shall  be  paid  for  equally  by  the  three  interested 
companies. 

FINAL   ORDER   OF   THE   COMMISSION. 

THURSDAY,  December  10,  1891. 

At  a  session  of  the  Railroad  and  Warehouse  Commission  of  the 
State  of  Illinois,  held  at  its  office  in  Springfield,  Illinois,  on  this  day, 
present — Isaac  N.  Phillips,  John  R.  Wheeler,  and  J.  C.  Willis,  Com- 
missioners; J.  H.  Paddock,  Secretary,  and  Chas.  Hansel,  Consulting 
Engineer — the  following  proceedings  were  had  in  this  cause: 

And  now  this  citation  having  come  on  to  be  finally  heard  and  de- 
termined before  the  Commission  this  10th  day  of  December,  1891,  and 
the  Commission  having  considered  the  evidence  taken  herein,  the 
agreements  made  by  the  parties  through  their  respective  counsel, 
and  the  arguments  of  counsel  made  thereon,  and  being  fully  advised 
in  the  premises,  on  consideration  doth  find: 

That  the  public  good  requires  that  the  crossing  described  in  the 
citation  be  protected  and  operated  by  ah  interlocking  device  and 
machine;  that  it  would  be  just  and  equitable  for  each  of  the  three 
companies  named  in  the  citation  to  pay  one-third  part  of  the  entire 
original  cost  of  such  machine  and  its  several  parts,  attachments  and 
appurtenances,  and  one-third  part  of  the  expense  of  maintaining  the 
same  in  good  repair  and  order,  and  also  one-third  part  of  the  ex- 
pense of  operating  said  machine. 

It  is  therefore  ordered  by  the  Commission  that  the  said  companies, 
to-wit:  The  Chicago,  Peoria  &  St.  Louis  Railway  Company,  the  Chi- 
cago &  Alton  Railroad  Company,  and  the  WTabash  Railroad  Com- 

tSee  opinion  in  the  case  of  the  Paducah  Junction  crossing. 


129 

pany,  forthwith  proceed  to  protect  said  crossing  by  an  interlocking 
machine  and  device  of  the  kind  and  description  shown  upon  the 
blue  print  drawing  and  plan  which  is  attached  hereto,  and  which  is 
hereby  made  part  and  parcel  of  this  order. f 

EXPLANATION   OF   PLAN. 

It  is  further  ordered  that  for  the  better  understanding  of  the 
said  plan,  the  following  explanations  thereof  be  observed: 

The  position  of  derails  is  indicated  by  a  shaded  point,  the  location 
being  fixed  by  measurement  indicated  by  figures. 

Main  track  routes  are  governed  by  top  blade  of  high  semaphore 
signal  placed  on  engineman's  side  of  the  track  which  it  governs. 

The  back-up  and  switching  movements  are  governed  by  dwarf  sem- 
aphore signals. 

The  distance  of  signal  from  point  it  governs  is  fixed  by  figure.  Its 
position  may  be  shifted  laterally  if  the  space  between  tracks  is  not 
sufficient  to  receive  the  post  without  danger. 

In  case  it  is  not  desired  to  operate  switches  marked  on  plan  as 
"worked  or  bolt-locked,"  then  the  lower  blade  governing  such  switch 
may  be  omitted. 

GENERAL   SPECIFICATIONS. 

It  is  further  ordered  that  the  said  interlocking  device  and  machine 
be  constructed  by  said  companies  in  accordance  with  the  following 
general  specifications,  to- wit: 

1.  The   switches,  derails  and  signals  must  be  operated  from  a 
central  tower  house  as  indicated  on  blue  print  plan. 

2.  All  signals  must  be  of  the  semaphore  type. 

3.  All  switches  and  locks  must  be  worked  by  one-inch  iron  pipe, 
plugged,  and  riveted  at  joints,  and  carried  on  anti-friction  pipe  car- 
riers fixed  on  oak  posts  placed  firmly  in  the  ground,  not  to   exceed 
eight  feet   apart.       Each  line  of  pipe  must   be   automatically  com- 
pensated. 

4.  All  signals  must  be  worked  with  two  lines  of  wire. 

5.  All  signal  blades  must  be  so  constructed  so  as  to  go  to  the  danger 
position  in  case   of   breakage  of  connections  anywhere  between  the 
operating  lever  and  blade. 

6.  All  facing  point  switches  must  be  fitted   with   duplex   facing 
point  locks. 

7.  All   cranks   and   pipe  compensators  must  be  fixed  on  founda- 
tions firmly  imbedded  in  concrete. 


tThis  plan  could  not  be  shown  on  this  printed  copy,  but  can  be  seen  on  the  docket  of  the 
Commission. 

—9  O 


130 

8.  All  cranks,  compensators,  chain  wheels,  and  main  pipe  lines 
must  be  boxed. 

9.  All  derails  and  operated  switches  must  be  provided   with  de- 
tector bar. 

10.  All  switch  points  must  work  on  iron  plates  so  arranged  as  to 
keep  the  track  at  switch  points  accurately  to  gauge. 

11.  All  connections   must  be  accurately  adjusted  so  as  to  make  it 
impossible  to  give  a  clear  signal  with  the  switch  open  or  partially 
open. 

12.  Each  part  of  the  machine  and  connections  must  be  made  suf- 
ficiently strong  for  the  work  it  is  to  perform. 

13.  All  movements   of  switches  and   signals  must   be   made  by 
levers  arranged  and   interlocked  so  as  to  prevent  the  operator  from 
giving  conflicting  signals. 

14.  The  material  and  workmanship  must  be  in  all  respects  first-class 
and  the  entire  plant  must  be  constructed  in  accordance  with  the  best 
practice  in  signalling,  and  the  plant,  as  a  whole,  must,  when  finished, 
t>e  complete  and  perfect  and  in  every  way  fit  for  the  purpose  of  its 
construction,  pnd  all  details  not  herein  specified  which  maybe  found 
necessary  to   the   completeness   and   efficiency  of   the   machine  and 
plant  shall  be  supplied  by  the  said  companies  the  same  as  though 
they  were  herein  particularly  set  forth. 

15.  The  machine  to  be  used  for  the  operation  and  interlocking  of 
signals,  switches,  and  derails  must  be   approved  by  this  Commission 
before  construction  is  commenced;  and  the  entire  plant  must  be  con- 
structed subject   to  the   approval  of  the   Railroad  and  Warehouse 
Commission,  and  permit  duly  issued,  as  required  by  statute,  before  it 
is  put  into  operation. 

It  is  further  ordered  that  the  said  three  companies  pay  equally 
one-third  each  of  the  original  cost  of  the  construction  of  the  said  de- 
vice and  machine,  one-third  each  of  the  cost  of  the  future  mainte- 
nance of  said  machine  in  good  order  and  repair,  and  one-third  each 
of  the  cost  of  the  operation  of  said  machine. 

It  is  further  ordered  that  the  said  companies  shall  construct  the 
said  device  and  machine  and  have  the  same  in  order  and  ready  for 
use  within  ninety  days  from  the  entering  of  this  order  (December 
10,  1891)  as  provided  by  statute. 


BEFORE  THE 


Railroad  and  Warehouse  Commission 


STATE  ©F  ILLINOIS. 


THE  CHICAGO  &  ALTON  RAILROAD  Co. 


vs. 


THE  CHICAGO  &  WESTERN  INDIANA  RAILROAD  Co., 
THE  BELT  RAILWAY  Co.  or  CHICAGO,  LESSEE, 

AND 

THE  ATCHISON,  TOPEKA  &  SANTA  FE  RAILROAD  Co, 


Petition  No.  1. — Protection  of  Crossing  near  Hawthorne. 


Citation  No.  5. — Protection  of  Crossing  of  Chicago  &  Western 
Indiana  Railroad,  the  Belt  Railway  Company,  of  Chicago, 
lessee,  and  the  Atchison,  Topeka  &  Santa  Fe  Rail- 
road, near  Hawthorne,  Consolidated. 


APPEARANCES. 

For  Chicago  &  Western  Indiana  Railroad  Co.,  The  Belt  Railway  of  Chicago, 

Lessee.— C.   M.   OSBORNE,  Gen'l   Sol.,  AND  C. 

DOUGHERTY,  Chief  Engineer. 

For  Chicago  &  Alton  Railroad  Co.— WM.  BROWN,  Gen'l  Sol. 
For  Atchison,  Topeka,  &  Santa  Fe  Railroad  Co.— A.  D.  WHEELER,  Attorney. 


133 


OPINION  OF  THE  COMMISSION. 


BY   PHILLIPS,  CHAIBMAN. 

This  is  a  petition  by  the  Chicago  &  Alton  Railroad  Company  to 
interlock  the  crossing  of  its  tracks  with  the  tracks  of  the  Chicago  & 
Western  Indiana  Railroad  Company,  operated  under  lease  by  the 
Belt  Railway  Company  of  Chicago, 

The  Belt  and  Western  Indiana  Companies  are  made  parties  de- 
fendant in  the  petition. 

The  crossing  sought  to  be  interlocked  is  in  the  city  of  Chicago. 
The  tracks  of  the  Alton  at  that  point  of  crossing  run  parallel  with 
the  Illinois  &  Michigan  Canal  on  the  south  side.  Parallel  with  the 
canal  upon  the  other  side  run  the  tracks  of  the  Atchison,  Topeka  & 
Santa  F6  Railroad  Company.  These  parallel  lines  of  the  road — the 
^tj-lton  and  Atchison — are  about  five  hundred  feet  apart,  and  they  are 
both  crossed  by  the  tracks  of  the  Western  Indiana  Company.  Deeming 
it  impracticable  to  interlock  one  of  these  crossings  without  including 
the  other  in  the  same  system,  the  Commission,  after  the  petition  in 
this  case  was  filed,  of  its  own  motion,'issued  a  citation  directed  to  the 
Atchison  Company,  and  also  to  the  Western  Indiana  and  Belt  Com- 
panies, commanding  them  to  show  cause  why  they  should  not  inter- 
lock the  crossing  of  their  tracks  upon  the  other  side  of  the  canal. 
This  citation,  has  by  agreement  of  all  the  parties,  been  consolidated 
with  the  petition  in  this  case,  so  that  we  have  the  whole  question  of 
interlocking  both  crossings  now  before  us. 

We  have  discussed  in  the  case  of  the  Paducah  Junction  crossing 
the  different  theories  advanced  for  the  apportionment  of  cost  of  con- 
struction and  expense  of  maintenance  and  operation,  and  it  is  unnec- 
essary to  repeat  here  what  has  been  there  said. 

The  Western  Indiana  Company  here  crosses  with  its  tracks  two 
other  roads.  It  has  a  double  track;  the  Alton  crossed  by  it  has  also  a 
double  track,  and  the  Atchison  is  now  constructing  a  double  track, 
and  consents  that  the  case  may  be  considered  upon  the  basis  of  its 
having  the  same  completed.  It  is  expected,  we  believe,  that  the  sec- 
ond track  of  the  Atchison  Company  will  be  completed  by  the  time 
this  interlocking  is  ready  for  use. 

There  are  a  switch  and  signal  which  add  two  levers  in  the  tower, 
and  are  located  between  the  tracks  of  the  Alton  and  the  Atchison, 
upon  one  of  the  Western  Indiana  tracks.  These  appliances  are  not 


134 

essential  to  the  interlocking  of  the  crossing,  but  are  put  in,  we  learn 
from  the  Consulting  Engineer,  at  the  request  of  the  Western  Indiana 
and  Belt  Companies  for  their  exclusive  accommodation.  So  far  as 
the  other  companies  are  concerned,  the  crossings  could  be  perfectly 
interlocked  without  these  appliances.  We  therefore  think  it  not  un- 
just to  charge  the  extra  cost  of  these  particular  appliances  to  the 
Western  Indiana  and  Belt  Companies.  Without  these,  the  number 
of  switches,  signals  and  levers  would  be  exactly  equal  upon  all  these 
lines.  Apportioning  first  cost  upon  levers,  which  under  the  circum- 
stances we  think  would  be  just,  the  Chicago  and  Western  Indiana 
and  the  Belt  Companies  would  pay  four-tenths  of  the  first  cost,  the 
Chicago  &  Alton  three-tenths,  and  the  Atchison  three-tenths.  We 
think  such  apportionment  of  the  first  cost  of  the  plant  would  be  fair 
under  the  circumstances. 

A  question  arises  here,  which  had  no  place  in  the  Paducah  Junc- 
tion case,  and  that  is  as  to  whether  existing  contract  burdens  for 
watchmen  and  gate-keepers  should  be  continued  upon  the  companies 
that  now  sustain  them  when  interlocking  is  introduced,  which  takes 
the  place  of  flagging  and  the  operation  of  gates.  It  appears  that  by 
contract  the  Western  Indiana  and  Belt  Companies  are  bound  to 
maintain  gatemen  at  their  crossing  with  the  Alton,  and  that  the 
Atchison,  by  a  like  contract,  is  bound  to  maintain  gateman  at  its 
crossing  with  the  Western  Indiana  and  Belt  upon  the  other  side  of 
the  canal.  We  have  before  us  the  affidavit  of  Mr.  Thomas,  President 
of  the  Belt  Company,  showing  that  he  now  pays  two  men  at  the  rate 
of  $55  per  month  each,  at  the  crossing  of  the  Alton;  but  the  affidavit 
also  shows  a  station  is  mantained  there,  and  therefore  the  company 
keeps  telegraph  operators  at  that  place,  who  command  higher  wages 
than  could  be  earned  by  a  man  competent  only  to  manage  the  gates. 
He  swears  that  suitable  men  could  be  procured  at  $40  per  month 
each  for  the  work  contracted  with  the  Alton  to  be  performed.  As  it 
would  require  a  day  man  and  a  night  man,  it  would  therefore  be 
necessary,  according  to  Mr.  Thomas'  affidavit,  for  the  Western  In- 
diana &  Belt  Companies  to  expend  $80  per  month  for  the  guarding 
of  this  crossing  in  accordance  with  the  contract  with  the  Alton. 

We  have  before  us  the  affidavit  of  Mr.  Nixon,  of  the  Atchison, 
showing  what  the  Atchison  pays  for  help  at  the  other  crossing,  in 
which  affidavit  he  estimates  that  $65  per  month  would  be  sufficient 
to  procure  the  services  called  for  by  the  contract  of  the  Atchison 
with  the  Belt  and  Western  Indiana  Companies.  Evidently  it  would 
cost  as  much  at  one  place  as  it  would  the  other,  they  being  only  a 
few  hundred  feet  apart,  and  the  services  required  being  the  same  in 
both  cases.  We  are  therefore  inclined  to  adopt  the  statement  of  Mr. 
Thomas  as  to  the  contract  obligation,  namely,  $80  per  month,  or  $960 
per  year  for  each  crossing.  Such  wages  should  be  paid  as  will  com- 
mand efficient  service.  These  contract  burdens  were  assumed  by 
these  companies  severally  in  order  to  obtain  their  crossings,  and  the 
Commission  see  no  reason  why  the  burden  should  not  be  continued 
after  interlocking  is  adopted.  The  interlocking  dispenses  with  the 
necessity  of  keeping  gateman  or  flagman,  and  the  work  is  performed 


135 

by  the  interlocking  machine  much  more  satisfactorily  and  with  much 
more  benefit  to  the  companies  than  it  could  be  done  in  the  old  way. 
It  is  therefore  the  opinion  of  the  Commission  that  these  burdens 
should  be  continued  and  applied  to  the  operation  of  the  interlocking 
plant  so  far  as  ihey  may  be  needed  for  that  purpose. 

An  order  will  therefore  be  entered  in  this  case  providing  that  the 
two  crossings  mentioned  in  the  petition  and  in  the  citations  shall  be 
interlocked  in  a  single  system;  and  that  of  the  original  cost  of  the 
construction  of  such  interlocking  plant,  the  Western  Indiana  and 
Belt  companies  shall  pay  jointly  four-tenths,  the  Alton  company 
three-tenths,  and  the  Athison  company  three- tenths;  that  the  expense 
of  maintaining  said  interlocking  machine  and  plant  in  good  order 
and  repair  shall  be  paid  by  the  said  companies  in  the  same  propor- 
tion; that  of  the  cost  of  operating  the  said  interlocking  machine  the 
Western  Indiana  and  Belt  Companies  shall  jointly  pay  one-half 
thereof,  up  to  the  point  where  said  one-half  may  reach  the  sum  of 
$80  per  month,  or  $960  per  year,  and  the  other  half  of  the  expense  of 
such  operation  shall  be  paid  by  the  said  Atchison  company,  up  to 
the  point  where  the  said  Atchison's  one-half  shall  reach  the  sum  of  $80 
per  month,  or  $960  per  year,  and  in  case  the  cost  of  operation  of  said 
interlocking  plant  shall  exceed  the  aggregate  of  the  sums  so  ordered  to 
be  paid  by  the  Western  Indiana  and  Belt  Companies  and  by  the  Atchi- 
son Company,  to- wit:  the  sum  of  $160  per  month,  or  $1,920  per  year, 
then  the  order  shall  provide  that  the  excess  over  and  above  that 
amount  shall  be  paid  equally  by  the  three  companies  concerned. 

FINAL  OKDEK  OF  THE  COMMISSION. 

THURSDAY,  December  10,  1891. 

At  a  session  of  the  Railroad  and  Warehouse  Commission  of  the 
State  of  Illinois,  held  at  its  office  in  Springfield,  Illinois,  on  this  day, 
present — Isaac  N.  Phillips,  John  R.  Wheeler  and  J.  C.  Willis,  Com- 
missioners; J.  H.  Paddock,  Secretary,  and  Chas.  Hansel,  Consulting 
Engineer — the  following  proceedings  were  had  in  this  cause: 

And  now  this  petition  and  citation,  consolidated  by  a  former  order 
of  the  Commission,  having  come  on  to  be  finally  heard  and  determined 
by  the  Commission  this  10th  day  of  December,  1891,  and  the  Com- 
mission having  considered  the  evidence  taken  therein,  the  agreements 
made  by  the  parties  through  their  respective  counsel,  and  the  argu- 
ments of  counsel  made  before  the  Commission  at  a  former  session, 
and  the  Commission  being  fully  advised  in  the  premises,  on  considera- 
tion doth  find: 

That  the  public  good  requires  that  the  crossings  described  in  the 
said  petition  and  citation  be  protected  and  operated  by  an  interlock- 
ing device;  that  it  would  be  just  and  equitable  for  the  companies 
named  in  said  petition  and  citation  to  pay  for  the  original  cost  and 
future  maintenance  of  said  device  as  follows: 

The  Chicago  &  Western  Indiana  Railroad  Company  and  the  Belt 
Railway  Company  of  Chicago,  lessee,  four-tenths;  the  Chicago  & 
Alton  Railroad  Company  three- tenths,  and  Atchison,  Topeka  & 
Santa  Fe  Railroad  Company  three-tenths;  and  that  it  would  fur- 


136 

ther  be  just  and  reasonable,  in  view  of  the  burdens  for  gatemen  now 
resting  upon  certain  of  them  by  contract,  that  the  expense  of  the 
operation  of  said  device  should  be  paid  for  by  said  companies  as  fol- 
lows: 

The  said  Chicago  &  Western  Indiana  Railroad  Company,  and  the 
said  The  Belt  Railway  Company  of  Chicago,  lessee,  to  pay  one-half 
of  said  operating  expense,  up  to  the  point  where  the  same  shall  reach 
the  sum  of  $80  per  month,  or  $960  per  year;  the  said  Atchison,  Topeka 
&  Santa  Fe  Railroad  Company  to  pay  the  remaining  one-half  of  such 
operating  expense,  up  to  the  point  where  the  same  shall  reach  a  like 
sum  of  $80  per  month,  or  $960  per  year;  and  of  the  expense  of  such 
operation,  if  any,  over  and  above  the  sum  of  said  payments  so  to  be 
made,  to- wit:  $160  per  month  or  $1,920  per  year,  the  said  Chicago  & 
Western  Indiana  Railroad  Company,  and  the  said  The  Belt  Railway 
Company  of  Chicago,  lessee,  to  pay  one-third  thereof,  the  said  Chi- 
caga  &  Alton  Railroad  Company  one-third  thereof,  and  the  said  At- 
chison, Topeka  &  Santa  Fe  Railroad  Company  one  third  thereof. 

It  is  therefore  ordered  by  the  Commission  that  the  said  companies 
to- wit:  The  Chicago  &  Western  Indiana  Railroad  Company,  and  The 
Belt  Railway  Company  of  Chicago,  lessee,  the  Chicago  &  Alton  Rail- 
road company,  and  the  Atchison,  Topeka  &  Santa  Fe  Railroad  Com- 
pany, proceed  to  protect  said  crossings  by  an  Interlocking  device  of 
the  kind  and  description  shown  upon  the  blue  print  drawing  and  plan 
which  is  attached  hereto,  and  which  is  hereby  made  part  and  parcel 
of  this  order.f 

EXPLANATION  OF  PLAN. 

It  is  further  ordered  that  for  the  better  understanding  of  the  said 
plan,  the  following  explanations  thereof  be  observed: 

The  position  of  derails  is  indicated  by  a  shaded  point,  the  location 
being  fixed  by  measurement  indicated  by  figures. 

Main  track  routes  are  goverened  by  top  blade  of  high  semaphore 
signal  placed  on  engineman's  side  of  the  track  which  it  governs. 

The  back-up  and  switching  movements  are  goverened  by  dwarf 
semaphore  signals. 

The  distance  of  signal  from  point  it  governs  is  fixed  by  figures. 
Its  position  may  be  shifted  latterly  if  the  space  between  tracks  is  not 
sufficient  to  receive  the  post  without  danger. 

In  case  it  is  not  desired  to  operate  switches  marked  on  plan  as 
"worked  or  bolt-locked,"  then  the  lower  blade  governing  such  switch 
may  be  omitted. 

GENERAL   SPECIFICATIONS. 

It  is  further  ordered  that  the  said  interlocking  device  and  machine 
be  constructed  by  said  companies  in  accordance  with  the  following 
general  specifications,  to- wit: 

tThis  plan  can  be  seen  attached  to  the  docket,  but  the  same  can  not  be  shown  here. 


137 

1.  The  switches,  derails  and  signals  must  be  operated  from  a  cen- 
tral tower  house  as  indicated  on  blue  print  plan. 

2.  All  signals  must  be  of  the  semaphore  type. 

3.  All  switches  and  locks  must  be  worked  by  one  inch  iron  pipe, 
plugged  and  riveted  at  joints  and  carried  on  anti-friction  pipe  car- 
riers fixed  on  oak  posts  placed  firmly  in  the  ground,  not  to  exceed 
•eight  feet  apart.      Each  line  of  pipe  must  be  automatically  compen- 
sated. 

4.  All  signals  must  be  worked  with  two  lines  of  wire. 

5.  All  signal  blades  must  be  so  constructed  as  to  go  to  the  danger 
position  in  case  of  breakage  of  connections  anywhere  between   the 
operating  lever  and  blade. 

6.  All   facing  point   switches  must  be  fitted  with  duplex  facing 
point  locks. 

7.  All  cranks  and    pipe  compensators  must  be  fixed  on  founda- 
tions firmly  imbedded  in  concrete. 

-8.     All  cranks,  compensators,  chain  wheels  and  main  pipe   lines 
must  be  boxed. 

9.  All  derails   and   operated  switches  must  be  provided  with  de- 
tector bar. 

10.  All  switch  points  must  work  on   iron  plates  so  arranged  as 
to  keep  the  track  at  switch  points  accurately  to  gauge. 

11.  All  connections  must  be  accurately  adjusted  so  as  to  make  it 
impossible  to  give   a  clear  signal  with  the  switch  open  or  partially 
open. 

12.  Each  part  of   the   machine   and   connections  must  be  made 
sufficiently  strong  for  the  work  it  is  to  perform. 

13.  All   movements  of  switches  and   signals   must   be  made  by 
levers  arranged  and   interlocked  so  as  to  prevent  the  operator  from 
giving  conflicting  signals. 

14.  The  material  and  workmanship  must  be  in  all   respects  first- 
class  and   the   entire   plant  must  be  constructed  in  accordance  with 
the  best  practice  in  signalling,  and  the  plant  as  a  whole,  must,  when 
finished,  be  complete  and  perfect  and  in  every  way  fit  for  the  pur- 
pose of  its   construction,  and  all  details  not  herein  specified,  which 
may  be  found  necessary  to  the  completeness  and  efficiency  of  the 
machine  and  plant  shall  be  supplied  by  the  said  companies,  the  same 
as  though  they  were  herein  particularly  set  forth. 

15.  The  machine  to  be  used  for  the  operation  and  interlocking  of 
the  signals,  switches  and  derails  must  be  approved  by  this  Commis- 
sion before  construction  is  commenced ;  and  the  entire  plant  must  be 
constructed  subject  to  the  approval  of  the  Railroad  and  Warehouse 
Commission,  and  permit  duly  issued,  as  required  by  statute,  before 
it  is  put  into  operation. 

It  is  further  ordered  that  the  said  companies  pay  the  cost  of  the 
original  construction  and  of  the  maintenance  of  said  device  as  fol- 
lows: 


138 

The  Chicago  &  Western  Indiana  Railroad  Company,  and  The 
Belt  Railway  Company  of  Chicago,  lessee,  shall  pay  four-tenths 
thereof,  the  Chicago  &  Alton  Railroad  Company  shall  pay  three- 
tenths  thereof,  and  the  Atchison,  Topeka  &  Santa  F6  Railroad  Com- 
pany shall  pay  three-tenths  thereof;  and  of  the  expense  of  the  oper- 
ation of  said  device  when  complete,  the  said  Chicago  &  Western  In- 
diana Railroad  Company,  and  the  said  The  Belt  Railway  Company 
of  Chicago,  lessee,  shall  pay  one-half  thereof,  up  to  the  point  where 
the  same  shall  reach  $80  per  month,  or  $960  per  year,  and  the  said 
Atchison,  Topeka  &  Santa  F6  Railroad  Company  shall  pay  the  other 
half  of  said  expense  of  operation  up  to  the  point  where  the  same 
shall  reach  the  sum  of  $80  per  month,  or  $960  per  year;  and  of  the 
expense  of  operation  over  and  above  the  sum  of  the  two  amounts  so 
provided  to  be  paid,  if  any,  the  said  Chicago  &  Western  Indiana 
Railroad  Company,  and  the  said  The  Belt  Railway  Company  of  Chi- 
cago, lessee,  shall  pay  one-third  of  such  excess,  the  said  Chicago  and 
Alton  Railroad  Company  shall  pay  one-third  thereof,  and  the  said 
Atchison,  Topeka  &  Santa  F6  Railroad  Company  shall  pay  the  re- 
maining one-third  of  such  excess. 

It  is  further  ordered  that  the  said  companies  ehall  construct  the 
said  interlocking  device  and  have  the  same  in  order  and  ready  for 
use  within  ninety  days  from  the  entering  of  this  order  (December 
10,  1891)  as  provided  by  statute. 


BEFOKE  THE 


Railroad  and  Warehouse  Commission 


STHTE  OF  ILLINOIS. 


THE  CHICAGO,  &  ALTON  RAILROAD  Co., 

PETITIONER. 


VS. 


THE  ATCHISON,  TOPEKA  &  SANTA  FE  RAILROAD  Co., 

RESPONDENT. 


PETITION  No.  2.—  PROTECTION  OF  CROSSING   AT   CORWITH. 


APPEARANCES: 

For  Petitioner,  WM.  BROWN,  General  Solicitor. 
For  Kespondent,  A.  D.  WHEELER,  Attorney. 


141 


OPINION  OF  THE  COMMISSION. 


BY  PHILLIPS,  CHAIRMAN. 

This  is  a  petition  by  the  Chicago  &  Alton  Railroad  Company  for 
an  order  to  compel  the  Atchison,  Topeka  &  Santa  Fe"  Railroad  Com- 
pany to  join  the  petitioner  in  interlocking  the  crossing  of  the  tracks 
of  the  two  companies  at  Corwith,  in  Cook  county.  The  location  of 
the  tracks  of  the  Atchison  company  at  this  point  are  peculiar.  The 
Alton  has  two  tracks  running  parallel  with  the  Illinois  &  Michigan 
canal  and  immediately  on  the  south  side  thereof.  The  Atchison  has, 
or  will  have,  two  main  tracks  also  running  parallel  with  the  canal 
upon  the  north  side.  Another  main  track  of  the  Atchison  company 
connecting  with  the  Corwith  yards  and  running  north  and  south , 
passes  over  the  canal  and  forms  a  crossing  with  both  the  tracks  of 
the  Alton  and  the  other  tracks  of  the  Atchison.  Besides  these  there 
is  a  switch  or  turn-out  of  the  Atchison  extending  over  the  canal  and 
crossing  the  Alton  tracks  near  the  place  where  the  other  north  and 
south  line  of  the  Atchison  crosses  them.  It  is  necessary  to  include 
both  the  main  track  crossings,  the  turn-out  crossing,  and  all  the 
switches  in  one  system  of  interlocking. 

The  Alton  here,  as  in  the  other  cases  before  us,  has  contended  that 
the  entire  burden  of  putting  in,  maintaining  and  operating  this  in- 
terlocking should  be  cast  upon  the  Atchison  because  it  is  the  junior 
company.  We  have  disposed  of  this  claim  of  seniority  in  our  opinion 
rendered  in  the  case  of  the  Paducah  Junction  crossing.  In  the  case 
before  us,  however,  a  very  large  proportion  of  the  cost  of  the  inter- 
locking plant  is  occasioned  by  the  number  and  peculiar  location  of 
the  tracks  of  the  Atchison  company,  and  it  would  be  unjust  to  com- 
pel the  Alton  company  to  pay  equally  with  the  Atchison  under  the 
peculiar  circumstances  of  this  case. 

The  Atchison  company  contends  that  the  expense  of  construction 
operation  and  maintenance  should  be  apportioned  according  to  the 
number  of  main  tracks  of  each  company  involved  in  the  crossing, 
which  in  this  case  would  be  a  burden  of  two-thirds  of  such  expenses 
upon  the  Atchison  company  and  one-third  upon  the  Alton  company. 
While  we  have  in  the  other  case  referred  to  expressed  our  dissatis- 
faction with  this  basis  of  apportioning  expenses  as  applied  to  ail 
cases,yet  in  the  particular  case  now  under  consideration  we  think  the  re- 


142 

suit  which  would  be  obtained  by  applying  the  main  track  basis  would 
be  just  and  equitable.  The  Atchison  company  offers  to  pay  two- 
thirds  of  all  cost  and  expense  and  we  are  inclined  to  regard  this,  un- 
der the  circumstances,  as  a  fair  offer. 

Since  this  case  was  heard  before  the  Commission  the  Atchison 
company  has  filed  a  plat  or  drawing  showing  that  the  projected  line 
of  the  canal  to  be  built  by  the  Chicago  Drainage  Commission  passes 
near  the  proposed  crossing  of  the  tracks  of  these  two  companies,  and, 
it  is  said,  if  the  canal  is  built  as  this  plan  indicates,  some  change  may 
have  to  be  made  in  the  location  of  the  tracks  of  the  Atchison  com- 
pany. We  are,  however,  advised  by  our  consulting  engineer,  that  the 
building  of  the  canal  as  proposed  will  not  necessarily  interfere  with 
the  interlocking  plant  required  for  these  crossings;  and  inasmuch  as 
the  digging  of  the  canal  is  somewhat  remote,  and  may  depend  upon 
contingencies,  we  have  concluded  not  to  change  the  plan  of  inter- 
locking upon  that  account.  We  do  not  think  the  proposed  canal  a 
sufficient  reason  for  denying  the  prayer  of  the  Alton's  petition. 

An  ordor  will  therefore  be  entered  in  this  case  for  the  interlock- 
ing of  the  system  of  crossings  and  switches  shown  upon  the  plats 
that  have  been  submitted  and  partly  described  in  the  petition  in 
this  case,  which  order  shall  provide  that  the  original  cost,  expense 
of  future  maintenance,  and  the  expense  of  operation,  shall  be  paid 
two-thirds  by  the  Atchison,  Topeka  &  Santa  Fe"  Railroad  Company, 
and  one-third  by  the  Chicago  &  Alton  Railroad  Company. 

FINAL   ORDER   OF   THE   COMMISSION. 

THURSDAY,  December  10,  1891. 

At  a  session  of  the  Railroad  and  Warehouse  Commission  of  the 
State  of  Illinois,  held  at  its  office  in  Springfield,  Illinois,  on  this  day; 
present — Isaac  N.  Phillips,  John  R.  Wheeler  and  J.  C.  Willis,  Com- 
missioners; J.  H.  Paddock,  Secretary,  and  Chas.  Hansel  Consulting 
Engineer — the  following  proceedings  were  had  in  this  cause: 

And  now  this  petition  having  come  on  for  final  hearing  and  deter- 
mination before  the  Commission  on  this  10th  day  of  December,  1891, 
and  the  Commission  having  considered  the  evidence  taken  herein, 
the  agreements  made  by  the  parties  through  their  respective  counsel, 
and  the  arguments  of  counsel  made  before  the  Commission  at  a  pre- 
vious session,  and  the  said  Commission  being  fully  advised  in  the 
premises  on  consideration  doth  find: 

That  the  public  good  requires  that  the  crossing  described  in  said 
petition,  and  the  other  crossing  and  switches  of  the  Atchison,  Topeka 
&  Santa  F6  Railroad  Company  hereby  found  to  be  necessarily  in- 
volved in  the  interlocking  system,  be  protected  and  operated  by  an 
interlocking  device;  that  it  would  be  just  and  equitable  for  the  said 
Chicago  &  Alton  Railroad  Company  to  pay  one- third  part  of  the  en- 
tire original  cost  of  said  device  and  its  several  parts,  attachments, 
and  appurtances  and  of  the  expense  in  maintaining  and  operating 
the  same,  and  for  the  said  Atchison,  Topeka  and  Santa  F6  Railroad 
Company  to  pay  two-thirds  of  such  original  cost  and  of  such  expense 
of  maintenance  and  operation. 


143 

It  is  therefore  ordered  by  the  Commission  that  the  said  companies, 
lo-wit:  The  Chicago  &  Alton  Railroad  Company  and  the  Atchison, 
Topeka  &  Santa  F6  Railroad  Company,  forthwith  proceed  to  protect 
said  crossings  by  an  interlocking  device  of  the  kind  and  description 
shown  upon  the  blue  print  drawing  and  plan  which  is  attached  hereto, 
and  which  is  hereby  made  part  and  parcel  of  this  order.f 

EXPLANATION   OP    PLAN. 

It  is  further  ordered  that  for  the  better  understanding  of  the  said 
plan,  the  following  explanations  thereof  be  observed: 

The  position  of  derails  is  indicated  by  a  shaded  point,  the  location 
being  fixed  by  measurement  indicated  by  figures. 

Main  track  routes  are  governed  by  top  blade  of  high  semaphore 
signal  placed  on  engineman's  side  of  the  track  which  it  governs. 

The  back-up  and  switching  movements  are  governed  by  dwarf 
semaphore  signals. 

The  distance  of  signal  from  point  it  governs  is  fixed  by  figures. 
Its  position  may  be  shifted  laterally  if  the  space  between  tracks  is 
not  sufficient  to  receive  the  post  without  danger. 

In  case  it  is  not  desired  to  operate  switches  marked  on  plan  as 
"worked  or  bolt-locked,"  then  the  lower  blade  governing  such  switch 
may  be  omitted. 

GENERAL   SPECIFICATIONS. 

It  is  further  ordered  that  the  said  interlocking  device  and  machine 
be  constructed  by  said  companies  in  accordance  with  the  following 
general  specifications,  to- wit: 

1.  The  switches,  derails  and  signals  must  be  operated  from  a  cen- 
tral tower  house,  as  indicated  on  blue  print  plan. 

2.  All  signals  must  be  of  a  semaphore  type. 

3.  All  switches  and  locks  must  be  worked  by  one-inch  iron  pipe, 
plugged  and  riveted  at  joints,  and  carried  on  anti-friction  pipe   car- 
riers fixed  on  oak  posts  placed  firmly  in  the  ground  not  to   exceed 
eight  feet  apart.     Each  line  of  pipe  must  be  automatically  compen- 
sated. 

4.  All  signals  must  be  worked  with  two  lines  of  wire. 

5.  All  signal  blades  must  be  so  constructed  as  to  go  to  the  danger 
position  in  case  of  breakage  of  connections  anywhere  between  the 
operating  lever  and  blade. 

6.  All  facing  point  switches  must  be  fitted  with  duplex   facing 
point  locks. 

7.  All  cranks  and  pipe  compensators  must  be  fixed  on  foundations 
firmly  imbedded  in  concrete. 

8.  All  cranks,  compensators,  chain  wheels,  and  main  pipe  lines 
must  be  boxed. 


tFor  plan  referred  to,  see  docket  of  the  Commission. 


144 

9.  All  derails  and  operated  switches  must  be  provided  with  de- 
tector bar. 

10.  All  switch  points  must  work  on  iron  plates  so  arranged  as  to- 
keep  the  track  at  switch  points  accurately  to  gauge. 

11.  All  connections  must  be  accurately  adjusted  so  as  to  make  it 
impossible  to  give  a  clear  signal  with  the  switch  open  or  partially 
open. 

12.  Each  part  of  the  machine  and  connections  must  be  made 
sufficiently  strong  for  the  work  it  is  to  perform. 

13.  All  movements  of  switches  and   signals   must   be   made  by 
levers  arranged  and  interlocked  so  as  to  prevent  the  operator  from 
giving  conflicting  signals. 

14.  The  material  and  workmanship  must  be  in  all   respects  first- 
class,  and  the  entire  plant  must  be  constructed  in  accordance  with 
the  best  practice  in  signaling,  and  the  plant  as  a  whole,  must,  when 
finished,  be  complete  and  perfect,  and  in  every  way  fit  for  the  pur- 
pose of  its  construction,  and  all  details  not  herein  specified,  which 
may  be  found  necessary  to  the  completeness  and  efficiency  of  the 
machine  and  plant,  shall  be  supplied  by  the  said  companies  the  same 
as  though  they  were  herein  particularly  set  forth. 

15.  The  machine  to  be  used  for  the  operation  and  interlocking  of 
the  signals,  switches,  and  derails  must  be  approved  by  this  Commis- 
sion before  construction  is  commenced,  and  the  entire  plant  must  be 
constructed  subject  to  the  approval  of  the  Railroad  and  Warehouse 
Commission,  and  permit  duly  issued  as  required  by  statute  before  it 
is  put  into  operation. 

It  is  farther  ordered  that  the  said  Chicago  &  Alton  Railroad  Com- 
pany pay  one-third  of  the  original  cost,  and  of  the  expense  of  main- 
tenance, and  of  the  future  operation  of  said  device,  and  that  the  said 
Atchison,  Topeka  &  Santa  F6  Railroad  Company  pay  two  thirds  of 
such  cost  and  expense. 

And  it  is  further  ordered  that  the  said  companies  shall  construct 
the  said  device  and  machine  and  have  the  same  in  order  and  ready 
for  use  within  ninety  days  from  the  entering  of  this  order  (December 
10,  1891)  as  provided  by  statute. 


No 


STATE    OF    ILLINOIS 


CLAIM  OF  McCouETiE,  HILL  &  Co. 


GRAIN  INSPECTION  DEPARTMENT,  CHICAGO. 


OPINION  OF  COMMISSION, 

-10  O. 


147 


OPINION  OF  COMMISSION. 


BY   PHILLIPS,    CHAIRMAN. 

McCourtie,  Hill  &  Co.  ask  the  Commission  to  refund  twenty  dollars 
deposited  by  them  upon  their  appeal  from  the  grading  of  four  cer- 
tain cars  of  oats.  The  track  inspector  graded  the  cars  "No.  3  oats." 
Claimants  appealed,  insisting  the  grade  should  be  "No.  3  white  oats," 
but  the  Appeals  Committee  affirmed  the  original  inspection.  A  re- 
turn of  fees  is  sought  upon  two  grounds,  namely: 

1.  That  a  proper  interpretation  and  application  of  the  printed 
rule  establishing  grades  of  oats  would  have  made  the  cargo  in  ques- 
tion "No.  3  white." 

2.  That  certain  similar  oats  before  inspected  for  claimants,  had 
been  graded  "No.  3  white,'"  thereby  giving  claimants  good  cause  to 
believe  the  grade  of  the  four  cars  would  be  changed  on  appeal,  and 
the   claimants,  having  thus  been  misled,  without  their  fault,  should 
in  equity  be  repaid  fees. 

That  part  of  rule  4  establishing  and  defining  the  two  grades  of 
oats  which  are  here  in  question  is  as  follows: 

"No.  3  WHITE  OATS  shall  be  seven-eighths  white,  but  not  suffi- 
ciently sound  and  clean  for  No.  2,"  (meaning  No.  2  white  oats). 

"No.  3  OATS  shall  be  all  oats  that  are  damp,  unsound,  dirty,  or 
from  any  cause  unfit  for  No.  2,"  (meaning  No.  2  oats) . 

The  oats  in  question  were  all  white.  So  far  therefore  as  color 
alone  could  be  decisive,  it  points  to  a  grading  of  these  oats  as 
"white;"  and  claimants  contend  that  upon  this  ground  of  color  the 
four  cars  should  have  been  graded  as  white  oats,  if  graded  at  all. 
One  question  here  is,  therefore,  whether  the  element  of  color  is  by 
itself  decisive  of  grade. 

The  words  of  the  above  rule  for  3  white,  "but  not  sufficiently  sound 
and  clean  for  No.  2,"  have  received  an  interpretation  by  the  long 
practice  of  the  department,  which  can  only  be  understood  by  re- 
curring to  the  definition  of  the  grade  of  No.  2  white,  which  latter  are 
required  to  be  "seven- eighths  white,  sweet,  reasonably  clean,  and  rea- 
sonably free  from  other  grain."  The  words  iii  the  No.  3  rule,  "but 
not  sufficiently  sound  and  clean  for  No.  2,"  are  held  to  mean  that  in 
soundness  and  cleanness  No.  3  shall  be  but  a  single  degree  or  point 
below  what  is  required  for  No.  2.  This  clause  is  not  construed,  as 


148 

contended  here,  to  embrace  all  other  oats  which  are  seven-eighths 
white,  and  not  too  unsound  and  dirty  to  be  graded  at  all.  Such  a 
construction  the  words  might  bear,  perhaps,  if  standing  alone;  but 
all  parts  of  the  rule,  establishing  grades  of  oats,  should  be  con- 
strued together;  and  when  it  is  considered  that  the  definition  of  "No. 
3  oats"  ambraces  "all  oats"  of  certain  defective  qualities,  we  think 
the  interpretation  which  the  3  white  rule  has  received  in  practice  is 
not  unreasonable.  Oats  which  are  musty,  very  dirty,  or  unsound  are 
not  graded  white,  even  though  the  color  of  them  is,  in  fact,  such. 
Such  oats,  if  fit  to  grade  at  all,  are  called  "No.  3  oats." 

The  oats  in  the  four  cars  of  McCourtie,  Hill  &  Co.,  were  musty— 
so  shown  to  be  by  the  samples  produced  at  the  hearing.  They  had 
been  damp,  and,  at  the  date  of  inspection,  were  not  approximately 
up  in  quality  to  No.  2  white,  in  soundness  and  sweetness.  Their 
proper  place  was,  therefore,  in  the  grade  of  "No.  3  oats,"  which,  it 
will  be  seen  from  the  above  rule,  embrace  "all  oats"  of  the  character 
described  in  it;  that  is  to  say,  oats  of  all  colors  which  are  "damp, 
unsound,  dirty,  etc." 

The  second  ground  urged  is,  that  a  previous  inspection  made  for 
claimants  of  similar  oats  as  "No.  3  white"  misled  claimants  into  be- 
lieving in  good  faith  that  the  cars  in  question  had  been  wrongly 
graded,  and  hence  the  fees  should  in  equity  be  refunded. 

It  does  appear  from  samples  shown  at  the  hearing,  that  certain 
musty  oats,  of  perhaps  no  better  quality  than  these  four  cars,  had 
previously  been  graded  for  claimants  as  "No.  3  white  oats."  It  is 
not  shown  what  track  inspector  did  this.  The  alleged  mislead- 
ing inspection  was,  however,  clearly  erroneous,  and  not  in  line  with 
the  general  practice  of  the  department. 

It  would  result  in  no  end  of  difficulty  and  confusion,  if  we  should 
hold,  that  one  inspector  is  bound  to  follow  the  error  of  another  in- 
spector of  equal  rank,  or  even  that  he  is  bound  to  follow  his  own 
error,  if  so  unfortunate  as  to  make  one.  The  judgment  of  the  track 
inspector  who  gave  the  grade  which  claimants  say  they  relied  upon, 
is  of  no  higher  authority  than  the  judgment  of  the  other  track  in- 
spector who  called  these  cars  "No.  3  oats."  If  this  appeal  demon- 
strates anything  it  is  that  the  first  inspection  was  wrong.  It  is  the 
voice  of  a  tribunal  of  arbitration  provided  by  law,  and  its  action  is 
conclusive  as  to  the  grade  of  these  oats  of  claimants. 

We  are  sufficiently  convinced  of  the  desirability  that  all  inspec- 
tions should  be  absolutely  correct,  if  that  were  possible.  So  long, 
however,  as  the  department  must  rely  upon  the  judgments  of  fallible 
men,  errors  will  occur,  and  will  be  expected  by  patrons.  The  problem 
is,  by  wise  regulations  and  proper  selection  of  inspectors,  to  reduce 
errors  to  a  minimum.  Some  hardships  would,  perhaps,  be  incident 
to  the  best  system  that  human  wisdom  could  devise.  Claimants  were 
no  doubt  led  by  their  experience  to  believe  an  appeal  would,  in  this 
case,  be  successful;  and,  if  their  belief  had  been  based  upon  a  judg- 
ment of  the  same  tribunal  to  which  their  appeal  was  taken,  instead 
of  being  based  upon  the  judgment  of  a  track  inspector  of  no  higher 


149 

authority  than  the  judgment  appealed  from,  there  would  be  better 
reason  to  say  they  should  in  equity  be  reimbursed.  Even  then  the 
question  would  be  raised  whether  the  Commissioners,  unskilled  as 
they  are  in  the  technical  requirements  of  inspectiou,  would  be  willing, 
by  refunding  these  fees,  to  discredit  the  judgment  of  the  Appeals 
Committee  in  a  matter  peculiarly  within  the  skill  and  jurisdiction  of 
that  committee.  The  Commission  does  not  hold  up  either  its  Ap- 
peals Committee  or  its  track  inspectors  as  infallible;  but  we  believe 
all  of  them  are  skillful  and  conscientious.  Unfortunately  the  grading 
of  grain  is  not  a  process  which  admits  of  mathematical  accuracy. 
Definitions  of  grades  are  after  all  but  words,  and  words  are  elastic 
things.  It  is  less  remarkable  that  errors  sometimes  occur  than  that 
they  occur  so  seldom.  If  an  inspector  does  err  the  department  can 
not  undertake  to  be  bound  by  his  error,  nor  to  indemnify  those  who 
may  be  so  unfortunate  as  to  rely  upon  the  error  as  authority. 

For  the  reasons  given,  the  claim  has  been  denied. 
Adopted  March  2,  1892. 


No.    18 


STHTE  OF  ILLINOIS. 


E 


CLAIM  OE  W.  W.  HUNTER, 


GRAIN  INSPECTION  DEPARTMENT  AT  CHICAGO, 


For  Error  in  Certificate. 


OPINION   OF  COMMISSION. 


153 


OPINION  OF  COMMISSION. 


BY  PHILLIPS,  CHAIRMAN. 

This  is  a  claim  of  W.  W.  Hunter  for  $19.16  damages  alleged  to 
have  resulted  to  him  from  a  clerical  error  in  a  certain  certificate  of 
inspection  of  a  car  of  oats.  The  facts  out  of  which  the  claim  arises 
have  been  succinctly  stated  to  the  Commission  by  Mr.  Price,  Chief 
Inspector,  in  the  following  letter: 

CHICAGO,  October  23,  1891. 
Hon.  Isaac  N.  Phillips,  Chairman  R.  and  W.  Com.,  Springfield,  III. 

DEAR  SIR: — I  beg  to  snbtnit  herewith,  for  the  consideration  of  Your  Honor- 
able Board,  a  claim  for  $19.16  made  against  the  department  by  Mr.  W. 
W.  Hunter.  The  circumstances  are  as  follows: 

Car  5032,  C.  S.  L.,  was  inspected  on  the  C.,B  .  &  Q.  R.  R.,  Sept.  21st,  1891, 
as  No.  Two  (2)  Oats,  "Subject  to  approval  on  unloading."  On  the  same  day, 
car  5062  was  inspected  as  the  same  grade,  but  without  the  qualification. 

By  an  error  in  copying,  Mr.  Fishback  left  the  first  car  off  the  books.  When 
a  certificate  on  the  car  was  called  for,  the  number  could  not  be  found;  but 
5062,  being  so  nearly  the  same  number,  and  agreeing  exactly  as  to  date  and 
grade,  the  natural  supposition  was  that  one  of  the  figures  was  wrong.  Some 
one  in  the  office  called  up  the  track  men  and  asked  which  number  was  cor- 
rect. The  track  men  happened  to  find  5032  first,  and  reported  that  such  was 
the  number  on  their  books.  On  the  strength  of  this  report  the  number  5062 
was  erased  and  5032  inserted  in  its  place,  but  without  the  limitation. 

On  the  strength  of  the  clear  certificate  furnished  him,  Mr.  Hunter  paid  for 
the  car  and  forwarded  it  to  a  customer  at  Kokomo,  Ind.  In  unloading  the 
grain  at  that  point  it  was  discovered  that  the  car  was  badly  "plugged,"  and 
that  the  oats  should  have  been  three  (3)  oats,  instead  of  two  (2).  The  claim 
of  two  (2)  cents  per  bushel  is  a  very  reasonable  one,  considering  the  quality 
of  the  oats  delivered. 

It  is  impossible  to  fix  the  fault  definitely  upon  any  person,  but  at  the  same 
time  Mr.  Hunter  has  been  damaged  beyond  question  by  some  one  or  more  of 
the  employes  of  this  department.  Mr.  Fishback  erred  in  leaving  the  car 
number  off  his  records.  The  man  also  who  took  the  matter  up  first  made  an 
excusable  error  in  jumping  at  the  conclusion  that  the  two  cars  were  identical, 
while  the  track  men  are  not  entirely  blameless,  in  that  they  did  not,  when  re- 
porting that  they  found  car  5032  on  their  books,  also  report  that  it  was  in- 
spected "subject  to  approval."  If  this  had  been  done,  or  if  the  car  had  been 
at  first  copied  as  it  should  have  been,  Mr.  Hunter  would  have  been  put  upon 
his  guard  and  a  re-inspection  ordered  which  would  have  developed  the  true 
state  of  affairs,  and  thrown  the  blame  upon  the  guilty  party. 

I  know  the  position  in  which  the  Commission  and  the  Department  are 
placed  by  the  opinion  of  the  Attorney  General,  but  I  know  also  that  the  pub- 
lic confidence  in  the  Department  suffers  severely  whenever  we  fail  in  a  single 
instance  to  make  our  grades  good. 


154 

The  dissatisfaction  among  the  grain  men  with  what  they  consider  a  dishon- 
orable shirking  of  a  plain  business  responsibility,  is  growing  all  the  time,  and 
1  am  forced  to  take  some  severe  "overhaul ings"  on  account  of  it. 

I  believe  that  every  man  on  the  Board  of  Trade,  without  a  single  dissenting 
voice  would  uphold  the  position  that  such  claims  as  this  should  be  paid  from 
the  Department  funds,  and  further,  that  all  such  claims  should  be  paid 
promptly,  and  such  amounts  as  may  deem  best  collected  back  from  the  in- 
spectors in  error. 

I  know  this  matter  is  considered  settled,  but  I  respectfully  ask  your  Honor- 
able Board  to  look  carefully  into  it  again  and  see  if  there  can  not  be  found 
some  justification  for  following  the  long  line  of  precedents  and  custom  of 
years,  rather  than  the  opinion  of  the  Attorney  General,  which,  while  it  is 
doubtless  good  law,  is  very  prejudicial  to  the  rights  of  the  public  and  the 
interest  and  reputation  of  the  Department. 

Respectfully  yours, 

(Signed)    P.  BIRD  PRiCEt 

Chief  Inspector. 

The  reasonings  of  the  Attorney  General  in  the  opinion  referred  to 
by  Mr.  Price,  taken  in  their  broadest  scope,  might  perhaps  exclude  a 
claim  of  the  character  here  presented,  but  the  claim  of  Franklin,  Ed- 
son  &  Co.,  on  which  that  opinion  was  rendered  was  for  the  error  of 
an  inspector  and  not  a  clerk.  The  inspector  graded  No.  8  wheat  as 
No.  2;  and,  it  may  be  added,  the  error  was  so  glaring  as  to  raise  a 
suspicion  of  the  inspector's  good  faith. 

The  statute  provides  that  each  track  inspector  shall  execute  a  bond 
in  the  penal  sum  of  $5,000,  conditioned  among  other  things,  "that  he 
will  pay  all  damages  to  any  person  or  persons  who  may  be  injured  by 
reason  of  his  neglect,  refusal,  or  failure,  to  comply  with  the  law  and 
the  rules  and  regulations." 

One  of  the  contentions  of  the  counsel  of  Franklin,  Edson  &  Co.» 
in  the  case  on  which  the  Attorney  General's  opinion  was  given,  was 
that  the  bond  required  by  statute  of  an  inspector  is  for  the  protec- 
tion of  the  Department  itself  as  well  as  of  patrons.  It  was  contended 
the  Commission  could  pay  the  claim  of  Franklin,  Edson  &  Co.,  and 
look  to  the  bond  of  the  inspector  for  reimbursement.  The  Attorney 
General  did  not,  however,  concur  in  this  view.  He  states  the  liability 
of  the  inspectors  upon  their  bonds  at  page  5  of  his  opinion,  in  these 
words: 

"The  law  requires  that  he  shall  be  qualified  for  the  duties  which  he  as- 
sumes, and  his  bond  is  given  for  the  purpose  of  holding  him  to  the  faithful 
performance  of  those  duties,  and  to  indemnify  those  who  may  be  injured  by 
his  neglect  so  to  do.  I  note  what  the  claimants  and  their  learned  counsel  say 
as  to  the  right  to  recover  on  the  bond  of  the  assistant  inspector  (i.  e.  the  right 
of  the  Commission  to  recover),  but  I  can  not  concur  either  in  the  reasoning 
or  the  conclusions  reached  by  them.  The  remedy  for  the  injury  of  which 
they  complain,  must,  in  my  opinion,  be  found  by  suit  on  the  bond  of  the  as- 
sistant inspector;  and  this  remedy  seems  to  be  adequate." 

After  quoting,  and  commenting  upon  the  law  as  to  what  may  prop- 
erly be  included  in  the  estimate  of  expenses  which  the  Commission 
is  authorized  to  raise  revenues  to  meet,  the  Attorney  General  con- 
cludes his  opinion  in  these  words: 


155 

"I  conclude  that  the  statute  confers  on  the  Commissioners  no  authority  to- 
use  funds  collected  for  the  necessary  expenses  incident  to  the  inspection  ser- 
vice in  paying  claims  for  injuries  arising  Jrom  false  or  erroneous  inspection.^ 
(Page  7.) 

Evidently  the  Attorney  General  meant  to  give  no  opinion  beyond 
the  case  that  was  before  him,  that  is  to  say:  The  case  of  a  claim  for 
the  erroneous  grading  of  grain  by  an  inspector  who  has  given  bond 
under  the  statute.  The  substantial  basis  of  the  opinion,  as  we  under- 
stand it,  is  the  fact  that  in  the  case  of  such  damages  the  statute  pro- 
vides injured  parties  a  complete  remedy  upon  the  inspector's  bondr 
and  thus  negatives  the  idea  that  the  Commission  was  expected  to 
pay  them.  In  other  words,  the  law  so  specifically  and  clearly  points 
out  another  remedy  that  in  the  opinion  of  the  Attorney  General  the 
Commission  is  without  power  to  make  other  provision  for  payment;, 
and  he  holds  further  that  the  recovery  on  the  bond  must  be  by  the 
injured  party  and  not  by  the  Commission. 

As  before  remarked,  this  case  is  not  like  that  of  Franklin,  Edson 
&  Co.  Here  the  error  can  not  be  distinctly  traced  to  any  officer  or 
employe"  of  the  department  who  is  required  by  statute  to  give  a  bond. 
The  clerks  in  the  office,  where  the  first  mischievous  errors  arose,  do 
not  give  bond  for  the  protection  of  patrons.  No  remedy  is,  therefore- 
provided  by  law  for  errors  made  by  the  Chief  Inspector's  clerks. 
Even  in  the  case  of  those  employe's  who  have  given  bond,  we  con- 
ceive that  cases  might  arise  where  it  would  be  impossible  to  trace 
the  error  in  such  way  as  to  furnish  to  patrons  an  effective  remedy 
for  the  injury. 

The  question  is  raised  whether  in  such  cases  this  Commission  shall 
leave  the  patrons  of  the  inspection  department  without  a  remedy. 
Unless  the  Commission  are  at  liberty  to  regard  damages,  arising  from 
errors  made  by  employe's  who  give  no  bond,  as  a  part  of  the  necessary 
expenses  of  the  department,  patrons  will  be  left  without  protection, 
We  are  advised  by  the  Chief  Inspector  that  to  do  this  tends  seriously 
to  discredit  the  inspection  department  among  its  patrons,  all  of  whom 
insist,  with  much  show  of  reason,  that  the  department  should  make 
its  grades  good. 

It  was  known  when  this  law  passed  that  fallible  men  would  be  em- 
ployed to  do  the  work  of  the  inspection  department,  and  that  the 
most  careful  men,  when  acting  under  the  best  devised  system,  will 
frequently  make  mistakes.  Would  it,  then,  do  any  violence  to  the 
law,  or  the  intention  of  its  framers,  to  hold  that  errors  committed  by 
employe's,  which  cause  patrons  damage,  shall,  in  the  absence  of  other 
express  provision  for  the  payment,  be  taken  and  held  as  a  part  of 
the  necessary  expenses  of  the  inspection  department,  to  be  paid  as 
other  expenses,  and  for  which  revenue  may  properly  be  raised  from 
inspection  fees?  Surely  such  claims  for  damages  could  have  been 
as  well  forseen  as  could  bills  for  the  rent  of  offices,  or  the  pay-roll  of 
employe's.  Nothing  else  was  to  have  been  expected  than  that  errors- 
would  occasionally  be  made,  and  that  damages  to  patrons  would  arise 
therefrom. 


156 

While  respecting  entirely  the  Attorney  General's  opinion,  we  at 
the  same  time  realize  the  necessity  so  well  expressed  in  the  Chief 
Inspector's  letter,  of  adopting  a  proper  policy  for  this  large  depart- 
ment of  State  work.  We  are  further  influenced  by  the  fact  lately  so 
well  established  that  the  patrons  of  the  department,  those  from  whom 
the  department  derives  its  revenues,  are  unanimons  in  their  wish  that 
damages  arising  from  errors  may  be  considered  as  an  expense  of  the 
department,  and  considered  in  fixing  the  inspection  fees.  We  are, 
therefore,  constrained  to  adopt  a  rule  permitting  the  use  of  the  funds 
of  the  department  for  the  purpose  of  paying  such  claims  for  damages 
as  may  arise  from  errors  that  can  not  be  distinctly  traced  to  some 
employ^  of  the  department  who  is  required  by  statute  to  give  a  bond. 
It  is  to  claims  arising  from  errors  of  this  latter  class  of  employe's 
which  we  believe  the  Attorney  General  intended  to  apply  his  opinion, 
and  there  his  opinion  will  be  given  full  force.  As  already  shown, 
the  case  before  the  Attorney  General  was  for  a  flagrant  error  com- 
mitted by  a  bonded  inspector,  and  his  opinion,  like  the  opinions  of 
courts,  can  not  have  force,  and  was  not  intended  to  have  force  beyond 
the  class  of  facts  out  of  which  it  arose. 

It  only  remains  to  be  said,  that  this  Commission,  foreseeing  the 
importance  of  this  question,  recommended  to  the  last  General  As- 
sembly a  law  authorizing  the  Commission  to  pay  claims  of  this  kind, 
and  providing  also  for  such  a  change  in  the  wording  of  the  condition 
of  the  inspector's  bonds  as  would  enable  the  Commission  in  the  first 
instance  to  settle  all  damages  for  errors  as  well  of  the  inspectors  as 
of  clerks,  leaving  the  adjustment  of  the  matter  of  the  employe's  lia- 
bility to  be  settled  between  him  and  the  Commission.  This  law, 
which  we  deem  to  be  urgently  needed,  passed  the  Senate  but  died  in 
the  House.  We  hope  the  next  General  Assembly  may  see  the  im- 
portance of  enacting  a  statute  relieving  this  subject  from  all  doubt, 
and  placing  the  Commission  in  a  position  to  make  good  its  grades 
against  the  errors  of  all  classes  of  employes. 

For  the  reasons  given,  the  claim  of  W.  W.  Hunter,  for  $19.16,  is 
hereby  ordered  paid. 

Adopted  March  3,  1892. 


No. 


STHTE  OF  ILLINOIS. 


SWITCHING    CARS 


OPINION   OF   ATTORNEY    GENERAL   HUNT   UPON   THE  LEGAL   DUTY: 

DEVOLVING    UPON    KAILROAD    COMPANIES    TO 

SWITCH  LOADED  AND  EMPTY  CARS. 


ISAAC  N.  PHILLIPS, 

JOHN  R.  WHEELER, 

J.  C.  WILLIS, 


J.  H.  PADDOCK,  Secretary. 


Commissioners. 


CORRESPONDENCE. 


TOLEDO,  ST.  Louis  &  KANSAS  CITY  R.  R., 
W.  S.  WEED,  General  Freight  Agent. 

TOLEDO,  Ohio,  Sept.  22,  1891. 

Mr.  J.  H.  Paddock,  Sec'y  III.  R.  R.  &  Warehouse  Com'n,  Spring- 
field, III. 

DEAR  SIR: — The  question  has  arisen  as  to  whether  or  not  it  is  ob- 
ligatory under  the  Illinois  State  Law  for  competing  lines  at 
junction  points  in  Illinois  to  switch  loaded  cars  from  a  competitor, 
same  to  be  unloaded  on  tracks  of  the  other;  also  as  to  placing  empty 
cars  of  a  competitor,  to  be  loaded  and  forwarded  via  the  latter.  It  is 
claimed  that  the  law  only  requires  the  switching  of  loaded  cars  for 
unloading,  and  that  there  is  no  provision  for  switching  empty  cars 
from  a  competing  line  to  the  side  tracks  of  another,  to  be  loaded  and 
forwarded  via  the  former.  Will  you  kindly  advise  fully  at  your  earli- 
est convenience? 

Yours  truly, 

(Signed)     W.  S.  WEED, 
D.  G.  F.  A. 


Office  of  RAILROAD  AND  WAREHOUSE  COMMISSION, 
SPRINGFIELD,  Sept.  24, 1891. 

W.  S.  Weed,  Esq.,  G.  F.  A.,  T.,  St.  L.  &  K.  O.  R.  R.,  Toledo,  Ohio. 

DEAR  SIR: — Replying  to  your  favor  of  the  22d  inst.:  I  will  lay 
the  same  before  the  Commission  at  its  next  meeting.  In  the  mean- 
time can  you  not  state  a  little  more  specifically  the  case  you  present, 
that  is,  locating  it  at  the  junction  point  referred  to  and  giving  names 
of  the  roads? 

Very  respectfully, 

(Signed)     J.  H.  PADDOCK, 

Secretary. 


160 

TOLEDO,  ST.  Louis  &  KANSAS  CITY  R.  R., 
W.  S.  WEED,  General  Freight  Agent. 

TOLEDO,  OHIO,  Sept.  29,  1891. 

Mr.  J.  H.  Paddock,  Sec'y  III.  JR.  JR.  &  Warehouse  Com'n,  Spring- 
field,  III. 

DEAR  SIR: — Responding  to  your  favor  of  the  24th  inst.,  we  have 
no  objection  to  giving  you  more  specific  information  as  to  the  case 
we  have  in  mind.  At  Cowden,  111.,  the  O.  &  M.  take  the  stand  that 
while  they  are  required  to  switch  loaded  cars  from  us  to  be  unloaded 
on  their  tracks,  they  do  not  understand  that  it  is  obligatory  for  them 
to  switch  empty  cars  to  their  side  tracks  to  be  loaded  for  shipment 
via  our  line.  We  would  like  a  full  interpretation  of  the  law  as  it 
affects  the  matter  of  s'witching  at  junction  points. 

Yours  truly, 

(Signed)     W.  S.  WEED, 
D.  G.  F.  A. 


Office  of  RAILROAD  AND  WAREHOUSE  COMMISSION, 
SPRINGFIELD,  ILL.,  Oct.  8,  1891. 

Hon.  Geo.  Hunt,  Attorney  General,  Springfield,  111. 

DEAR  SIR: — Enclosed  I  hand  you  two  communications  from  Mr. 
W.  S.  Weed,  General  Freight  Age'nt,  Toledo,  St.  Louis  &  Kansas 
City  Railroad  Co. 

The  Commission  have  adopted  the  following  order  in  relation 
thereto: 

"Ordered,  That  the  Secretary  place  the  communications  of  W.  S. 
Weed,  General  Freight  Agent,  Toledo,  St.  Louis  &  Kansas  City  R. 
R.  Co.,  dated  September  22  and  29,  1891,  in  the  hands  of  the  Attorney 
General,  with  the  request  that  he  communicate  to  this  Commission 
his  opinion  thereon  as  soon  as  practicable." 

Very  respectfully, 

(Signed)     J.  H.  PADDOCK, 

Secretary. 


Office  of  RAILROAD  AND  WAREHOUSE  COMMISSION, 
SPRINGFIELD,  Nov.  5,  1891. 

Hon.  Geo.  Hunt,  Attorney  General,  Springfield,  III. 

DEAR  SIR: — If  you  will  return  to  me  the  letters  of  Mr.  W.  S. 
Weed,  the  Commission  will  try  and  formulate  an  inquiry  in  regard 
to  the  matter  which  will  be  perfectly  clear, 

Very  respectfully, 

(Signed)     J.  H.  PADDOCK, 

Secretary. 


161 

"BLUFF  LINE." 

ST.  Louis,  ALTON  &  SPRINGFIELD  RAILROAD, 
JOSEPH  DICKSON,  Receiver. 

SPRINGFIELD,  ILL.,  Nov.  3,  1891. 
Mr.  J.  H.  Paddock,  Sec'y,  Springfield,  III. 

DEAR  SIR: — I  would  respectfully  ask  your  opinion  on  a  matter  of 
switching  facilities  furnished  by  one  railroad  for  another.  The  case 
on  hand  is  as  follows: 

At  Alton,  111,,  the  Alton  Lime  and  Cement  Works  are  located  on 
our  tracks,  and  can  only  be  reached  by  other  companies  through  our 
switching  their  cars.  This  company  furnishes  lime  to  the  Spring- 
field Gas  Company,  who  have  all  the  shipments  routed  via  the  C.  & 
A.  R.  R.,  notwithstanding  the  fact  that  we  agreed  and  are  willing  to 
meet  any  ra'.e  the  C.  &  A.  R.  R.  makes. 

As  this  business  justly  belongs  to  us,  are  we  compelled  to  switch 
the  C.  &  A.  Cars  at  Alton  to  and  from  these  works  on  their  paying 
us  the  customary  $2  per  car  switching  charge?  An  early  reply  will 
greatly  oblige. 

Yours  respectfully, 

(Signed)     F.   E.  FISHEB, 

G.  F.  A. 


Office  of  RAILROAD  AND  WAREHOUSE  COMMISSION, 

SPRINGFIELD,  Nov.  16,  1891. 

F.  E.  Fisher,  G.  F.  A.,  St.  L.,  A.  &  S.  E.  R.,  Springfield,  III. 

DEAR  SIR: — Your  communication  of  the  3d  inst.  was  referred  to 
Chairman  Phillips  for  investigation.  As  soon  as  he  makes  his  re- 
port thereon  I  will  furnish  you  with  a  copy  of  it. 

Very  respectfully, 

(Signed)     J.  H.  PADDOCK,  Secretary 


BLOOMINGTON,  Dec.  7,  1891. 
Hon.  George  Hunt,  Attorney  General,  Springfield,  III. 

DEAR  SIR: — The  inclosed  letters  of  W.  S.  Weed  were  formerly 
transmitted  to  you  by  the  Secretary  of  the  Railroad  and  Warehouse 
Commission  under  order  of  the  Board,  which  read: 

"Ordered,  that  the  Secretary  place  the  communications  of  W.  S.  Weed, 
General  Freight  Agent,  T.  St.  L.  &  K.  C.  R.  R.  Co.,  dated  Sept.  22d  and 
29th,  1891,  in  the  hands  of  the  Attorney  General,  with  the  request  that  he 
communicate  his  opinion  thereon  as  soon  as  practicable." 

Subsequently  you  returned  the  letters  with  a  communication  say- 
ing, in  substance,  that  the  questions  on  which  an  opinion  was  desired 
were  not  stated  in  the  letters  with  sufficient  particularity  for  you  to 

—11  O 


give  an  opinion.  Upon  receipt  of  this  communication  from  you  the 
letters  were  referred  to  me  with  the  instructions  to  state  the  ques- 
tions to  you  in  such  manner  as  to  make  them  intelligible. 

Since  that  time  other  communications  raising  a  kindred  question 
have  been  received  from  Mr.  F.  E.  Fisher,  of  the  "Bluff  Line,"  which 
communications  I  have  marked  No.  2,  and  inclose  them  herewith  to- 
gether with  the  letters  of  Mr.  Weed,  formerly  in  your  hands.  I  will 
say  that  I  regard  the  question  raised  by  these  letters  as  a  very  impor- 
tant one,  and  one  that  is  likely  to  lead  to  litigatien  before  very  long. 
The  question  of  the  legal  obligation  of  a  railroad  to  switch  cars  for 
another  road,  or  to  switch  cars  for  patrons  who  may  desire  it  done  in 
those  places  where  no  regular  switching  business  is  done  by  any  com- 
pany, is  one  which,  so  far  as  I  know,  has  never  been  directly  settled. 
Questions  of  this  kind  naturally  arise  in  small  towns  rather  than  in 
large  ones,  for  the  reason  that  in  large  cities  there  are  roads  which 
devote  themselves  to  doing  switching  business.  There  is,  in  the  city 
of  Chicago,  at  least  one  company,  I  think,  which  does  nothing  else, 
^nd  in  the  city  of  Peoria,  the  Burlington  road  has  a  "switching  de- 
partment." In  such  places,  therefore,  there  is  an  agency  to  do  the 
switching,  and  questions  of  this  kind  do  not  arise.  But  Mr.  Weed 
mentions  that  at  Cowden,  111.,  the  O.  &  M.  draws  the  line  of  its  legal 
•obligation  at  the  switching  of  empty  cars  from  its  side-track  to  be 
loaded  for  shipment  by  way  of  the  Clover  Leaf  Line.  The  question 
is,  whether  under  the  common  law  and  statutes  of  Illinois,  there  is 
legal  obligation  upon  the  O.  &  M.  to  take  empty  cars  from  another 
xoad  and  place  them  at  factories  or  institutions  located  on  its  line  to 
be  loaded  for  shipment  by  way  of  another  line  of  road. 

In  the  correspondence  of  Mr.  Fisher,  you  will  see  that  a  similiar 
question  is  raised.  He  desires  to  know  whether  the  Bluff  Line  is 
under  a  legal  obligation  to  switch  cars  for  the  C  &  A.  company  to 
and  from  certain  cement  works,  located  on  the  Bluff  Line,  the  C.  & 
A.  road  offering  to  pay  the  customary  two  dollars  per  car  for  switch- 
ing charges. 

The  question  is  highly  important,  and  the  Commission  do  not  feel 
like  guessing  it  off  without  full  investigation  and  without  taking 
your  opinion,  inasmuch  as  suits  may  grow  out  of  these  questions. 

The  only  case  in  which  this  Commission  has  had  occasion  to  at  all 
consider  the  question  was  in  complaint  No.  64,  Union  Brewing  Co.  v. 
C.,  B.  &  Q.;  but  in  that  case  it  was  unnecessary,  as  the  Commission 
thought,  to  decide  squarely  the  question  of  the  legal  obligation  to 
switch  cars.  The  question  in  that  complaint  was,  rather,  as  to 
whether  a  company  which  did  habitually  do  a  switching  business 
could,  while  switching  for  some,  refuse  to  switch  for  others. 

I  inclose  you  herein  the  printed  opinion  of  the  Commission  in  that 
complaint  wherein  you  will  see  on  pages  6,  7  and  8,  what  the  Com- 
mission have  said  touching  this  question.  I  do  not  send  this  to  you 
as  an  authority  at  all,  but  rather  as  a  help  to  you  to  understand  the 
point  of  these  inquiries.  I  will  say  that  the  Commissioners  did  not 
make  up  their  minds  upon  the  main  question. 

It  may  also  make  some  difference  that  the  parties  applying  to  have 


103 

cars  switched  in  the  cases  stated  in  these  letters  were  other  railroad 
companies,  and  not  an  individual  patron  of  the  road.  Whether  this 
makes  any  difference  or  not,  I  leave  you  to  judge.  In  the  case  of  the 
O.  &  M.,  the  company  seems  to  base  its  refusal  upon  a  distinction 
between  the  switching  of  loaded  cars  to  their  destination,  and  the 
switching  of  empty  cars  to  the  initial  point  to  be  loaded  for  shipment. 
This  question  will,  of  course  be  considered  by  you. 

Very  truly  yours, 
(Signed)     ISAAC  N.  PHILLIPS,  Chairman,  etc. 


NOAH  H.  PIKE, 

Dealer  in  Lumber  and  Coal. 

CHENOA,  ILL.,  Feb.  1,  1892. 
I.  N.  Phillips,  Esq.,  R.  &  W.  Commissioner. 

DEAR  SIR: — The  first  of  this  year,  the  C.  &  A.  R.  R.  Co.  issued  or- 
ders to  their  agent  here  not  to  do  any  more  switching  for  me  on  lum- 
ber less  than  2.7  cents  per  100  Ibs.,  making  it  cost  me  for  the  smallest 
car  (20,OOU  Ibs.)  $5.40,  when,  as  I  understand  the  price  for  switching 
established  by  the  R.  &  W.  Commissioners  is  $2.00  per  car,  the  price 
I  have  always  paid  before  Jan.  1,  1892. 

Can  you  do  anything  for  me,  or  have  they  any  legal  right  to  make 
such  a  charge? 

Hoping  to  hear  from  you  soon,  I  am, 

Very  truly, 

(Signed)         NOAH  H.  PIKE. 


THE  CHICAGO  &  ALTON  RAILROAD  Co., 

C.  H.  CHAPPELL,  Gen.  Manager, 
CHICAGO,  ILL.,  Feb.  4,  1892. 

Isaac  N.  Phillips,  Esq.,  R.  R.  &  W.  H.  Comm'r,  Bloomington. 

DEAR  SIR: — Your  favor  of  the  3d,  addressed  to  the  General  Soli- 
citor, inclosing  complaint  from  Noah  H.  Pike,  of  Chenoa,  regarding 
switching,  has  been  referred  to  me. 

In  reply,  I  beg  to  say  that  if  our  company  has  ever  done  any 
switching  at  Chenoa  for  Mr.  Pike,  it  was  all  wrong.  We  do  not  un- 
dertake to  furnish  terminal  facilities  for  the  use  of  other  roads,  and 
we  have  never  authorized  any  of  our  agents  at  junction  points  to  do 
switching  of  business  arriving  by  our  competitors.  If  they  have 
done  so,  it  has  been  doue  by  them  without  authority  from  the  officers 
of  the  company.  In  a  few  cases  we  learned  that  this  was  being 
done,  and  have  given  orders  putting  a  stop  to  it,  except  at  the  Com- 
missioners' rate  for  the  shortest  distance.  You  can  readily  see  how 
impossible  it  would  be  for  us  to  furnish  facilities  to  do  the  business 
of  other  roads  at  a  switching  charge. 

This  same  question  was  up  at  Alton  some  time  ago,  through 
Commissioner  Wheeler. 

Yours  truly, 

(Signed)        C.  H.  CHAPPELL. 


164 

OFFICE  OF  RAILROAD  AND  WAREHOUSE  COMMISSION, 

BLOOMINGTON,  ILL.,  Feb.  6, 1892. 
Hon.  George  Hunt,  Springfield,  III. 

DEAR  SIR: — Under  this  cover  I  send  you  a  letter  of  Noah  H.  Pike, 
of  Chenoa,  Illinois,  dated  Feb.  1,  1«92.  Also  a  letter  of  C.  H.  Chap- 
pell,  General  Manager  of  the  C.  &  A.  R.  R.  Co,,  dated  Feb.  4,  1892. 

These  letters,  you  will  observe,  raise  practically  the  same  legal 
question  which  the  Commission  some  time  since  submitted  to  you, 
and  which  you  now  have  under  advisement,  relating  to  the  legal  ob- 
ligation of  railroad  companies  to  switch  cars  in  those  places  where 
they  have  no  regular  switching  department,  and  where  they  do  not 
hold  themselves  out  to  do,  and  in  fact  do  not  do,  a  switching  busi- 
ness. 

I  refer  you  to  my  letter  of  Dec.  7,  1891,  for  an  extended  statement 
of  the  legal  questions  that  are  arising  concerning  switching,  and  to 
the  correspondence  in  the  O.  &  M.  case,  and  the  Bluff  Line  case, 
which  had  been  previously  submitted  to  you. 

I  foresee  that  this  question  of  the'obligation  of  companies  to  switch 
cars  is  likely  to  arise  in  a  great  many  cases  in  this  State  in  the  near 
future,  and  I  wish  to  emphasize  the  importance  of  taking  a  proper 
stand  upon  it,  and  hope  the  subject,  when  the  crowded  condition  of 
your  office  permits,  will  receive  full  and  careful  attention. 

Very  truly  yours, 

(Signed)        ISAAC  N.  PHILLIPS. 


JOLIET,  WILL  Co.,  May  26,  1892. 

To  the  Honorable  Board  of  Railroad  and  Warehouse  Commission- 
ers, Springfield,  III. 

This  complaint  I  wish  to  file  with  you  for  your  consideration  at 
your  next  session. 

I  am  handling  coal  (car  loads  only)  on  commission  for  the  Roan- 
oke  Coal  Co.  Their  mines  are  situated  on  the  Atchison,  Topeka  & 
Santa  Fe"  Railway,  at  Roanoke,  Woodford  Co.,  111.  There  being  no 
other  railroad  at  that  point  we  are  compelled  to  ship  our  coal  via. 
A.  T.  &  S.  Fe"  Ry.  At  Joliet  I  have  several  industries  I  supply  with 
coal,  situated  on  side  tracks  of  the  C.  &  A.  R.  R.  Consequently  coal 
shipped  to  these  places  has  to  be  switched  by  the  C.  &  A.  after  ar- 
riving on  the  A.  T.  &  S.  F6  at  Joliet,  for  which  services  the  C.  &  A. 
charge  one  dollar  and  fifty  cents  ($1.50)  per  car.  For  years  here  the 
C.  &  A.  has  switched  all  coal  coming  into  Joliet  via.  other  lines,  but 
since  the  1st  of  last  April  General  Mgr.  C.  H.  Chappell,  of  the  C.  & 
A.,  positively  refuses  to  handle  my  coal,  and  in  one  or  two  interviews 
I  had  with  him  he  told  me  industries  on  his  road  must  buy  their  coal 
from  mines  situated  on  the  C.  &  A.  road.  I  had  contracted  last  March 
with  some  of  these  firms  to  supply  them  with  coal  for  the  quarry 
season,  and  under  the  present  difficulties  with  the  C.  &  A.  R  R.  I 
can  not  meet  my  obligations,  and  I  am  damaged  at  least  $40.00  per 
month. 


165 

The  Michigan  Central,  the  Rock  Island,  the  E.  J.  &  E.  and  the 
A.  T.  &  S.  Fe"  Rys.  all  switch  coal  in  and  about  Joliet  coming  from 
other  roads,  the  C.  &  A.  included,  at  a  rate  of  $1.50  per  car.  The  C. 
&  A.  will  switch  any  other  commodity  but  draw  the  line  on  coal. 

Now  I  submit  to  your  honorable  body  this  question  for  fair  adjust- 
ment. Will  you  gentlemen  allow  the  Chicago  &  Alton  R.  R.  Co  to 
discriminate  against  me  in  this  manner?  The  M.  C.,  the  Rock  Island 
and  the  E.  J.  &  E.  Railway  companies  all  switch  my  coal  here  to  in- 
dustries situated  on  their  tracks  for  $1.50  per  car,  which  is  the  agreed 
price  among  all  railroad  companies  here  for  switching.  I  am  a  poor 
man  striving  to  make  an  honest  living  out  of  the  coal  business.  Will 
you  allow  this  C.  &  A.  R.  R.  Co.  to  freeze  me  out,  or  will  you  compel 
them  to  switch  my  coal? 

(Signed)  LUTHER  PENNINGTON. 

Subscribed  and  sworn  to  before  me  this  26th  day  of  may,  1892. 

CHARLES  F.  BLOOD, 

Notary  Public. 


OFFICE  OF  RAILROAD  AND  WAREHOUSE  COMMISSION, 

SRRINGFIELD,  June  8, 1892. 
C.  H.  Chappell,  Esq.,  G.  M.,  C.  &  A.  E.  R.,  Chicago,  III, 

DEAR  SIR: — Enclosed  please  find  copy  of  complaint  filed  with  the 
Commission,  to  which  please  make  answer  as  soon  as  possible. 

Very  respectfully, 
(Signed)  J.  H.  PADDOCK, 

Secretary. 


THE  CHICAGO  &  ALTON  RAILROAD  COMPANY, 
C.  H.  CHAPPELL,  General  Manager, 
CHICAGO,  ILL.,  June  13,  1892. 

J.  H.  Paddock,  Esq.,  Sec'y  Railroad  and  Warehouse  Commission, 
Springfield,  III. 

DEAR  SIR: — I  beg  to  acknowledge  receipt  of  yourfavorof  June  8th, 
enclosing  complaint  of  Mr.  Luther  Pennington,  of  Joliet,  that  we  re- 
fuse to  switch  coal  arriving  by  Santa  F6  road  to  side  tracks  on  our 
line. 

In  reply,  this  is  the  same  complaint  that  has  been  made  at  Alton 
and  other  places.  We  do  refuse  to  furnish  our  terminal  facilities  for 
the  use  of  other  roads.  It  is  simply  confiscation  to  ask  us  to  do  so. 
If  such  a  rule  was  made,  any  new  road  entering  Chicago  could  build 
to  the  city  limits  and  then  demand  that  the  older  roads  do  their  busi- 
ness at  a  switching  charge.  There  is  no  discrimination  against  Mr. 
Pennington,  we  refuse  to  switch  the  coal  of  any  dealer  in  Joliet  when 


166 

arriving  by  a  competing  line.  If  any  coal  was  ever  switched  for  him 
it  was  done  without  the  knowledge  and  against  the  orders  of  the  man- 
agement. We  expect  our  competitors  to  consult  their  own  interest 
in  deciding  whether  they  will  switch  for  us  or  not.  1  am  not  advised 
that  they  do  switch  coal  for  us  at  Jcliet  or  not.  In  framing  the 
Inter-state  Law,  Congress  saw  the  injustice  of  allowing  competing 
lines  to  use  the  terminals  of  other  companies. 

Yours  truly, 
(Signed)         C.  H.  CHAPPELL, 

General  Manager. 


STATE  OF  ILLINOIS, 

Office  of  RAILROAD  AND  WAREHOUSE  COMMISSION, 
SPRINGFIELD,  June  16,  1892. 

Hon.  Geo.  Hunt,  Attorney  General. 

DEAR  SIR: — Enclosed  I  hand  you  complaint  of  Luther  Pennington, 
of  Joliet,  111.,  against  the  Chicago  &  Alton  Railroad  Co.,  which  the 
Commission  have  referred  to  you  for  your  opinion  thereon.  They 
desire  me  to  call  your  attention  to  the  fact  that  this  complaint  is  in 
the  same  line  with  other  complaints  referred  to  you  some  time  ago 
for  an  opinion  as  to  the  question  involved.  The  Commission  desire 
to  know  if  there  is  a  legal  obligation  resting  upon  a  railroad  company 
to  switch  cars  for  other  railroad  companies.  The  Commission  also 
call  your  attention  to  the  answer  of  Mr.  C.  H.  Chappell,  General 
Manager  C.  &  A.  R.  R.  Co.,  giving  his  reasons  why  they  decline  to 
perform  the  service  of  switching  at  Joliet  for  other  lines. 

The  Commission  will  await  your  decision  as  to  whether  the 
grounds  set  up  in  the  answer  are  sound  and  legal  or  not. 

Very  respectfully, 

(Signed)         J.  H.  PADDOCK,  Secretary. 


ATTORNEY  GENERAL'S  OFFICE, 

SPRINGFIELD,  June  20,  1892. 

Hon.  Isaac  N.  Phillips,  Chairman  R.  &  W.  Commission. 

DEAR  SIR: — I  have  the  honor  to  receive  for  my  consideration  at 
the  request  of  the  Railroad  and  Warehouse  Commission  your  favors 
concerning  inquiry  of  W.  S.  Weed,  as  to  the  duty  of  the  O.  &  M.  Ry. 
Co.,  in  regard  to  switching  at  Cowden,  and  of  F.  E.  Fisher,  as  to  the 
duty  of  the  ''Bluff  Line,"  at  Alton,  and  the  complaint  of  Noah  H. 
Pike,  at  Chenoa,  against  the  C.  &  A.  R.  R.  Co.;  and  also  a  letter  from 
J.  H.  Paddock,  Secretary,  enclosing  complaint  of  Luther  Pennington 
against  the  C.  &  A.  R.  R.  Co.,  at  Joliet. 

While  the  questions  submitted  differ  in  some  particulars,  they  all 


167 

relate  to  the  subject  of  switching  cars  by  a  railroad  company  at  a 
junction  point, which  cars  have  been  or  are  to  be  transported  over  a 
line  of  railroad  controlled  by  another  company. 

In  my  opinion  it  is  the  duty  of  every  railroad  company  which  is 
doing  a  general  railroad  business  to  haul  all  cars,  loaded  or  unloaded, 
properly  delivered  to  it  or  required  to  be  hauled  over  its  line  or  a 
part  thereof  for  the  carriage  of  freight,  either  for  another  railroad 
company  or  for  a  private  patron. 

The  railroad  company  can  not  compel  the  public  to  patronize  its 
line  either  by  a  refusal  to  deliver  cars  to  another  railroad  as  in  the 
"Bluff  Line"  case,  or  by  a  refusal  to  receive  them,  as  in  the  Penning- 
ton  case  at  Joliet.  The  patron  may  select  his  carrier,  and  the  rail- 
road company  is  bound  to  carry  for  all  those  offering  freight  and  de- 
manding service,  and  can  not  discriminate  by  refusing  to  carry,  on 
the  ground  that  the  commodity  would  come  in  competition  with  like 
commodities  or  industries  on  its  own  line,  or  that  it  would  lessen  the 
demand  for  commodities  that  might  otherwise  be  carried  over  its  own 
line. 

However,  where  freight  is  shipped  over  one  line,  I  do  not  think 
there  is  any  rule  of  public  duty,  or  any  obligation  of  public  carriers 
that  will  require  another  railroad  company  to  transfer  cars,  either 
loaded  or  empty,  without  compensation. 

So  in  the  matter  inquired  about  by  Mr.  W.  S.  Weed,  concerning 
the  duty  of  the  O.  &  M.  at  the  junction  at  Cowden,  I  am  of  the  opin- 
ion that  it  is  the  duty  of  the  O.  &.  M.  Railway  Company  to  switch 
empty  cars,  delivered  to  it  at  the  junction,  to  its  side  track,  as  re- 
quested, to  be  there  loaded  for  shipment  over  another  line,  and  to  re- 
turn them  to  the  connecting  road,  as  well  as  to  receive  loaded  cars  to  be 
unloaded  at  its  side  track. 

In  the  "Bluff  Line"  case,  I  think  the  shipper  may  select  the  line 
over  which  he  will  ship  the  lime  referred  to,  and  if  he  prefers  the  C. 
&  A.  line,  it  is  the  duty  of  the  "Bluff  Line"  to  deliver  the  cars  to  the 
C.  &  A.  as  requested,  and  the  "Bluff  Line"  can  not  compel  the  ship- 
ment of  the  lime  over  its  road  by  refusing  to  switch  the  cars  to  the 
other  road. 

In  the  matter  of  the  complaint  of  Noah  H.  Pike,  of  Chenoa,  it 
seems  that  the  C.  &  A.  R.  R.  Co.  is  willing  to  do  the  switching  re- 
quired, and  the  only  question  there  raised  is  as  to  the  amount  of 
compensation  to  be  paid.  The  complaint  does  not  show  what  the 
extent  of  the  service  is,  nor  is  it  material  for  this  office  to  know;  but 
I  am  of  the  opinion  that  the  Commission  should  ascertain  the  facts 
in  this  respect  and  should  determine  what  is  a  reasonable  charge 
for  the  service  required ;  for  that  purpose  it  may  be  material  to  ascer- 
tain whether  the  required  movement  of  the  cars  is  such  as  to  amount 
to  a  "haul,"  or  is  only  what  is  commonly  called  a  "switching"  service. 
As  the  company  acknowledges  its  willingness  to  do  the  switching  in 
moving  the  cars,  and  only  raises  the  question  of  the  amount  of  com- 
pensation, this  becomes  a  matter  purely  for  the  Commission  to  deter- 
mine. 


168 

In  the  matter  of  the  complaint  of  Luther  Pennington,  at  Joliet,  the 
statement  is  indefinite  as  to  the  distance  the  cars  are  required  to  be 
hauled  by  the  C.  &  A.  R.  R.  Company.  The  railroad  company,  how- 
ever, it  appears,  refuses  to  haul  the  cars  furnished  by  Pennington  on 
any  terms;  and,  in  this,  it  seems  to  me  the  railroad  company  refuses 
to  perform  a  plain  duty.  The  apparent  object  of  the  refusal  is  to 
compel  the  purchaser  of  coal,  to  whom  Pennington  desires  to  deliver 
it,  to  purchase  coal  which  shall  be  shipped  over  the  line  of  the  C.  & 
A.  railroad,  and  from  a  mine  located  on  that  road.  The  public  can 
not  be  coerced  in  this  manner  to  patronize  any  particular  mine  or 
line  of  railroad.  It  is  the  duty  of  the  company  to  take  the  coal  of- 
fered to  it  at  its  junction  of  another  road,  to  be  delivered  to  another 
point  for  the  delivery  of  coal  on  its  road.  Whether  the  service  which 
it  is  required  to  perform  is  such  as  to  amount  to  a  "haul,"  or  is  only 
"switching."  should  be  determined  by  the  Railroad  and  Warehouse 
Commission,  and  a  reasonable  maximum  charge  for  such  service 
should  also  be  fixed,  by  that  body. 

I  return  herewith  the  letters,  complaints  and  communications  sub- 
mitted to  me  by  you  in  relation  to  the  above  entitled  cases. 

I  have  the  honor  to  be,  very  respectfully, 

(Signed)         GEORGE  HUNT,  AWy  General* 


BEFORE  THE 


Railroad  and  Warehouse  Commission 


STATE  ©F  ILLINOIS. 


THE  CENTRALIA  &  CHESTER  RAILROAD  Co., 

PETITIONER. 


VS. 


THE  LOUISVILLE  &  NASHVILLE  RAILROAD  Co. 


PETITION  FOB  LEAVE  TO  CROSS 


APPEARANCES: 

For  Petitioner,  W.  S.  FORMAN. 
For  Respondent,  J.  M.  HAMILL. 


171 


CROSSING  ORDER 


BY  THE  COMMISSION. 

The  really  disputed  question  here  is  whether  or  not  petitioner  shalF 
be  required  to  interlock  this  crossing.  Having  been  unable  as  yet  to 
arrive  at  a  conclusion  satisfactory  to  all  of  us  on  this  question,  and 
realizing  the  injustice  of  longer  holding  the  case,  while  peti- 
tioner is  waiting  to  build  its  road,  we  have  concluded  to  enter  an  or- 
der permitting  petitioner  to  cross  so  the  work  can  be  proceeded  with, 
and  to  reserve  consideration  of  the  question  of  interlocking.  By 
this  means  the  Commission  will  not  lose  jurisdiction  of  this  subject, 
and  that  deliberation  can  be  had  which  will  insure  a  more  nearly  cor- 
rect conclusion.  There  are  said  to  be  machines  in  use  less  expensive 
and  better  adapted  to  a  crossing  of  this  kind  than  the  more  elaborate 
appliances  commonly  in  use,  and  which  it  would  not  be  onerous 
upon  petitioner  to  put  in  at  this  crossing.  We  can,  while  holding 
the  question,  investigate  these  appliances;  and  in  the  meantime 
actual  experience  arising  from  use  of  the  crossing  may  demonstrate 
more  clearly  what  the  public  good  requires  in  the  premises. 

It  is  ordered  that  the  petitioner,  the  Centralia  &  Chester  Railroad 
Company,  have  leave  to  cross  with  its  track  the  track  of  the  respond- 
ent, the  Louisville  &  Nashville  Railroad  Company,  at  the  point  men- 
tioned in  their  petition  now  on  file  in  this  cause. 

Ordered  further  that  this  cause  be  kept  on  the  docket  and  that  the 
question  of  the  protection  of  said  crossing  by  interlocking  or  other- 
wise be  held  under  advisement. 

Adopted  March  18,  1892. 

INTERLOCKING  ORDER — BY  PHILLIPS,  CHAIRMAN. 

Upon  further  consideration  of  this  petition  the  Commission  have  ar- 
rived at  the  conclusion  that  the  crossing  requires  protection  byin+er- 
locking.  It  is  probable  that  if  in  any  case  the  Commissic  n  found  them- 
selves able,  consistently  with  their  views  of  duty,  to  permit  any  new 
crossing  to  be  formed  without  the  protection  of  interlocking,  this  would 
be  such  a  case.  We  are,  however,  firmly  convinced  that  all  new 
crossings  at  grade  hereafter  constructed  in  this  State  should  be  pro- 
tected. A  device  can  be  used  at  the  crossing  in  question,  which,  it 
is  believed,  will  not  cost  to  exceed  $1,500.  The  business  of  the  Cen- 
tralia and  Chester  Railroad  will  probably  be  light  for  some  time  to 


172 

come,  and  the  distant  signals  on  that  road  might  be  dispensed  with 
and  an  interlocking  device  adopted  and  put  in,  to  be  operated  by 
the  trainmen  of  the  Centralia  &  Chester  road,  thus  dispensing  with 
the  necessity  of  keeping  a  force  expressly  for  the  purpose  of  opera- 
ting this  machine.  This  implies,  of  course,  that  the  signals  on  the 
Louisville  &  Nashville  road  be  kept  set  at  "advance"  in  both  direc- 
tions. When  a  tram  on  the  Centralia  &  Chester  road  desires  to 
cross  it  will  be  necessary  for  it  to  stop  at  the  dwarf  home  signal,  a 
trainman  can  proceed  to  the  tower  house,  reverse  the  signals  and 
givft  the  Centralia  &  Chester  train  the  right  of  way.  Then,  after  the 
train  has  passed  the  home  signal  upon  the  other  side,  the  trainman  in 
the  tower  can  again  set  the  signals  at  "advance"  for  the  Louisville  & 
Nashville  trains.  By  this  means  the  expense  of  operation  could  be 
avoided.  Should,  however,  a  plan  be  adopted  which  does  not  con- 
template a  regular  force  for  operation,  it  will  be  absolutely  necessary 
that  some  employ^  of  the  Centralia  &  Chester  Railroad  Company  be 
charged  with  the  duty  of  keeping  the  machine  in  adjustment,  oiling 
the  same,  and  cleaning,  filling  and  hanging  out  the  signal  lamps. 

The  above  are  suggestions  which  the  roads  concerned  have  the 
power  to  adopt  or  not  as  they  choose.  Mr.  Chas.  Hansel,  Consulting 
Engineer  of  the  Commission,  has  prepared  a  plan  for  such  a  device 
as  we  have  suggested,  a  copy  of  which  will  be  furnished  the  respective 
companies  upon  application. 

Should  the  companies  prefer  a  device  of  the  regular  pattern  in  use 
with  distant  signals  upon  both  roads  to  be  operated  by  men  kept 
for  the  purpose,  there  will,  of  course,  be  no  objection  on  the 
part  of  the  Commission  to  the  adoption  of  such  a  device  by  the  agree- 
ment of  the  parties.  We  should  indeed  prefer  such  a  device,  but 
have  been  constrained  to  make  the  above  suggestions  upon  the  sup- 
position that  the  new  company,  the  Centralia  &  Chester,  is  perhaps 
not  financially  in  position  to  put  in  an  expensive  machine  at  this 
time.  Should  the  business  of  the  Centralia  &  Chester  road  increase, 
and  should  it  be  hereafter  demonstrated  by  experience  that  a  more 
elaborate  plant  is  necessary,  high  home  signals  and  distant  signals 
can  be  added  on  the  Centralia  &  Chester  road,  and  provision  be  made 
for  the  operation  of  the  plant  by  regular  men;  and  this  matter  will  be 
within  the  power  of  the  Commission  at  any  time  if  application  is 
made  by  either  party  in  this  behalf,  or  the  Commission  can  proceed 
of  its  own  motion  if  the  public  good  is  found  to  require  it. 

It  is  ordered  that  the  crossing  of  the  main  track  of  the  Centralia 
&  Chester  Railroad  and  the  Louisville  &  Nashville  Railroad  de- 
scribed in  the  petition  in  this  cause  be,  and  the  same  is  hereby  or- 
dered to  be  protected  by  a  system  of  interlocking  and  switches. 

It  is  further  ordered  that  the  petitioner,  the  Centralia  &  Chester 
Railroad  Company,  shall  pay  the  first  cost  of  the  construction  and 
the  putting  in  of  such  interlocking  device,  and  also  the  expense  of 
maintaining  the  same  in  good  order,  condition  and  repair;  but  the 
question  of  apportioning  the  expense  of  the  operation  of  said  plant 


173 

is  hereby  reserved  until  such  time  as  the  device  to  be  used  shall  have 
been  agreed  upon  by  the  parties,  or  in  case  of  their  failure  to  agree, 
prescribed  by  the  Commission.  And  inasmuch  as  under  the  statute 
the  companies  are  permitted  to  agree  upon  a  plan  of  interlocking, 
provided  they  can  do  so,  therefore  it  is  ordered  that  this  case  be  held 
under  consideration  by  the  Commission,  pending  the  efforts  of 
parties  to  agree  upon  a  plan. 

Adopted  June  21,  1892. 


BEFORE  THE 


STATE  OF  ILLINOIS. 


THE  TAMAROA  &  MT.  VERNON  RAILWAY  Co., 

PETITIONER, 
VS. 

THE  LOUISVILLE  &  NASHVILLE  RAILROAD   Co.  AND   SOUTHEAST   & 
ST.  Louis  RAILWAY  Co., 

RESPONDENTS. 


PETITION  FOR  LEAVE  TO  CROSS. 


APPEARANCES. 

For  Petitioner.  H,  CLAYHORNER. 
For  Respondent,  J.  M.  HAMILL. 


177 


OPINION. 


BY  PHILLIPS,  CHAIRMAN. 

This  is  a  petition  under  the  act  of  1889,  wherein  the  Tamaroa  & 
Mt.  Vernon  Railway  Company  asks  leave  to  cross,  with  its  proposed 
track,  the  track  of  the  Louisville  &  Nashville  Railroad  Company  at 
a  point  in  the  city  of  Mt.  Vernon,  Jefferson  county,  Illinois,  about 
1,700  feet  east  of  the  passenger  station  of  the  Louisville  &  Nashville 
Company,  in  that  city.  Although  at  the  immediate  point  of  proposed 
crossing  the  Louisville  &  Nashville  track  is  practically  level,  there  is 
a  sharp  up-grade  to  the  west  of  the  crossing  extending  to  the  neigh- 
borhood of  the  passenger  station.  For  a  distance  of  1,200  feet  east 
or  southeast  of  the  proposed  crossing,  the  grade  of  the  Louisville  & 
Nashville  road  is  level,  and  still  farther  to  the  eastward  the  grade 
falls.  The  proposed  crossing  is  on  a  two  degree  curve. 

Our  function  under  this  petition  is  to  prescribe  the  place  and 
manner  of  this  crossing,  the  parties  not  having  been  able  to  agree. 
As  to  the  manner  of  crossing,  it  is  not  contended  that  the  same 
should  be  constructed  otherwise  than  at  grade  as  proposed.  The 
place  of  crossing  is  objected  to  by  respondent  on  account  of  the 
down-grade  from  the  west  approaching  the  crossing  point;  but  there 
seems  to  be  no  serious  contention  that  a  better  point,  which  would 
at  all  answer  the  purpose  of  the  petitioning  companj',  could  be 
selected.  At  any  rate,  no  sufficient  showing  is  made  to  justify  the 
Commission  in  ordering  the  crossing  at  a  different  place  from  that 
proposed. 

It  seems  also  to  be  conceded  that  the  Commission  should,  under 
the  power  conferred  under  the  interlocking  act  of  1891,  cause  this 
proposed  crossing  to  be  interlocked ;  and  certainly  the  location  and 
steepness  of  the  grades  renders  this  imperative. 

The  really  controverted  question  is,  whether  or  not  the  petitioning 
company  shall  pay  the  entire  expense  of  the  operation  of  the  inter- 
locking plant,  or  whether  such  expense  shall  be  divided,  in  the  dis- 
cretion of  the  Commission,  between  the  two  companies.  The 
petitioner's  counsel  concedes  that,  under  the  act  of  1891,  the  petitioner 
is  bound  to  pay  the  original  cost  of  the  "construction"  of  the  inter- 
locking machine,  and  also  the  expense  of  "maintaining"  the  same- 
restricting  the  latter  word  to  include  only  such  repairs  and  renewals 

—12  O 


178 

as  the  interlocking  device  may  from  time  to  time  require.  Respond- 
ent insists  that  a  proper  construction  of  the  statute  requires  that  pe- 
titioner, in  addition  to  the  cost  of  construction  and  the  expense  of 
maintaining,  should  also  bear  the  whole  expense  of  operating  the 
plant  after  it  is  completed,  meaning  by  expense  of  operation  the 
wages  of  those  who  work  the  machine. 

The  language  out  of  which  this  question  arises  occurs  in  the  con- 
cluding portion  of  section  3  of  the  act  of  1891,  and  is  as  follows: 

"Said  Commission  shall  further  designate,  in  such  order,  the  proportion  of 
the  cost  of  the  construction  of  such  plant,  and  the  expense  of  maintaining  and 
operating  the  same,  which  each  of  the  companies  or  persons  concerned  shall 
pay.  In  case,  however,  one  railroad  company  shall  hereafter  seek  to  cross 
at  grade,  with  its  track  or  tracks,  the  track  or  tracks  of  another  railroad 
company,  and  the  Railroad  and  Warehouse  Commission  shall  determine  that 
interlocking  or  other  safety  appliances  shall  be  put  in,  the  railroad  company 
seeking  to  cross  at  grade  shall  be  C9mpelled  to  pay  all  cost  of  such  appliances, 
together  with  the  expense  of  putting  them  in  and  the  future  maintenance 
thereof." 

It  will  be  noted  that  that  portion  of  this  language  which  relates  to 
•crossings  already  in  existence,  names  three  items  of  expense,  namely, 
"cost  of  construction,"  "expense  of  maintaining,"  and  expense  of 
"operating."  The  language  which  refers  to  those  companies  which 
"shall  hereafter  seek  to  cross  at  grade,"  etc.,  mentions  only  "all  cost 
of  such  appliances,  together  with  the  expense  of  putting  them  in, 
and  the  future  maintenance  thereof"  Undoubtedly  the  word  "main- 
tenance" is  broad  enough,  in  its  common  acceptation,  to  include  the 
cost  of  operating  the  machine.  However,  to  arrive  at  its  meaning  in 
the  place  where  it  stands  in  this  section,  it  is  necessary  to  consider 
the  language  used  in  the  preceding  part  of  the  section,  and  there  we 
find  the  expense  of  maintaining  the  plant  mentioned  as  one  item  of 
expense,  and  the  expense  of  "operating"  as  another.  We  think  the 
,  word  "operating,"  so  used,  designates  the  wages  of  such  employes  as 
may  be  needed  to  control  and  work  the  machine  in  actual  use.  The 
legislature  having  included  the  wages  of  operators  in  a  phrase  dis- 
tinct from  that  of  "maintaining"  the  machine  in  this  same  section, 
we  do  not  feel  at  liberty,  under  the  well  recognized  canons  of  statu- 
tory construction,  to  extend  the  meaning  of  the  phrase  "future  main- 
tenance," as  subsequently  used,  so  as  to  include  such  wages. 

We  shall  enter  into  no  learned  disquisition  in  support  of  this 
view,  but  state  it  as  the  conclusion  at  which  we  have  arrived,  and 
which,  we  think,  would  be  adopted  by  the  courts,  if  construing  this 
statute  under  the  long-established  and  well  recognized  rules  of  stat- 
utory construction. 

In  case  of  the  interlocking  of  crossings  already  existing  when  the 
act  was  passed,  a  discretion  was  vested  in  this  Commission  to  ap- 
portion cost  of  construction,  expense  of  maintaining  and  expense  of 
operation  between  the  companies,  as  justice  might  be  deemed  to  re- 
quire. In  the  case  of  crossings  afterwards  to  be  constructed,  the  ex- 
ercise of  this  discretion  by  the  Commission  was  withheld  so  far  as 
the  items  of  first  cost  and  maintenance  are  concerned,  the  legislative 
discretion  having  been  here  substituted  through  a  positive  statutory 


179 

direction.  Thus  the  cost  of  "operating,"  meaning,  as  we  view  it,  the 
wages  of  men  to  operate  the  machine,  is,  in  the  case  of  new  crossings, 
left  unprovided  for,  and  this  remains  to  the  reasonable  discretion  of 
this  Commission. 

How  shall  this  undistributed  expense  be  apportioned  by  us?  Left 
to  our  judgment  in  the  premises,  we  confess  we  could  see  no  good 
reason  to  treat  expense  of  operation  differently  from  the  other  items 
named;  and,  perceiving  no  sound  distinction,  we  might  follow  the 
policy  of  the  legislature,  and  visit  the  expense  of  operation  also  upon 
the  company  seeking  the  crossing.  This,  however,  we  are  not  at  lib- 
erty to  do,  because  it  is  the  legislative  view,  not  our  own,  which  we 
must  seek  to  follow;  and,  whether  we  are  able  to  perceive  a  distinc- 
tion or  not,  we  must  suppose  the  legislature  saw  a  distinction,  other- 
wise they  would  have  included  expense  of  operation  with  the  other 
items  to  be  paid  by  the  new  comer,  which  latter,  with  the  subject  di- 
rectly before  them  for  consideration,  the  law-makers  did  not  do.  We 
therefore  conclude  the  expense  of  operation  should,  under  the 
language  of  this  section,  be  apportioned  by  us  between  the  com- 
panies on  such  basis  as  we  may  deem  equitable  under  all  the  circum- 
stances of  the  case. 

And  it  seems  not  improper  to  remark  here,  that  when  a  railroad 
company  lays  down  its  track,  it  does  so  as  a  public  agency  by  virtue 
of  a  franchise  derived  from  the  State,  and  which  it  holds  for  the  pub- 
lic benefit,  and  subject  to  such  future  regulations  and  burdens,  po- 
lice and  otherwise,  as  may,  in  the  proper  care  for  the  public  interest, 
be  imposed  from  the  same  source.  Had  the  right  of  way  of  the  first 
road  which  crossed  Illinois  been  held  by  law  too  sacred  to  be  crossed 
by  the  tracks  of  other  roads  without  the  imposition  of  large  burdens 
based  solely  upon  the  advantages  of  priority  in  time,  it  is  not  diffi- 
cult to  see  that  the  development  of  the  State  might  have  been,  by 
such  a  policy,  seriously  retarded. 

In  the  case  of  the  petition  of  the  Chicago  &  Alton  Railroad  Com- 
pany for  the  interlocking  of  its  crossing  with  the  Illinois  Central 
and  Wabash  tracks  at  Paducah  Junction,  wherein  it  was  urged  that 
the  petitioning  company  was  entitled  to  exemption  from  cost  and  ex- 
pense by  reason  of  its  seniority,  this  Commission  observed: 

"For  the  reasons  given,  seniority  can  not  be  taken  as  a  basis  of  determina- 
tion, discarding  other  considerations.  There  may  arise  cases  where  it  will 
constitute  an  element  proper  to  be  considered;  but,  speaking  generally,  if  the 
Commission  finds  two  railroads  in  operation  upon  the  ground,  without  spe- 
cial contract  burdens  as  between  themselves,  they  must  be  dealt  with  on  a 
basis  of  practical  equality." 

The  Supreme  Court  of  Illinois,  in  the  case  of  Chicago  &  Alton 
Railroad  Co.  v.  Joliet,  Lockport  &  Aurora  Railway  Co.  105  111.,  388, 
at  the  particular  page  401,  discussing  the  question  whether  or  not  the 
stopping  of  trains  by  the  senior  road  at  the  proposed  crossing,  as  re- 
quired by  statute,  could  properly  be  considered  as  an  element  of 
damage  in  condemnation,  speaking  through  Chief  Justice  Scott,  says: 


180 

"Corporations,  as  well  as  citizens,  are  subject  to  the  police  power  of  the 
State  *  Should  it  be  held  that  before  a 

new  railroad  could  be  laid  across  the  track  of  a  railroad  previously  con- 
structed, the  damage  for  any  inconvenience  such  company  might  suffer  on  ac- 
count of  haying  to  submit  to  and  observe  police  regulations  in  regard  to  the 
conduct  of  its  business  thereafter  should  first  be  ascertained  and  paid  by  the 
new  road,  it  would  amount  to  a  practical  prohibition  of  the  construction  of 
new  railroads  in  the  State. 

"Unless,  therefore,  every  railroad  corporation  takes  its  right  of  way  sub- 
ject to  the  right  of  the  public  to  have  other  roads,  both  common  highways 
and  railways,  constructed  across  its  track  whenever  the  public  exigency 
might  be  thought  to  demand  it,  the  grant  of  the  privilege  to  construct  a  rail- 
road across  or  through  the  State  would  be  an  obstacle  in  the  way  of  its  future 
prosperity  of  no  inconsiderable  magnitude.  The  claim  made  for  damages,  in 
this  respect,  has  neither  reason  nor  weight  of  authority  for  its  support.  In 
Railway  v.  Railway  HO  Ohio  St.  604,  it  is  well  said:  'While  the  elder  road  can 
demand  compensation  for  its  property  to  the  extent  of  its  appropriation,  it 
has  no  right  to  demand  tribute  from  the  junior  road  for  the  enjoyment  of  the 
same  corporate  franchises  that  it  possesses.  Each  owes  its  authority  ta 
operate  its  road  to  the  same  source, — the  State, — and  neither  has  the  right  to 
tax  the  other  for  the  enjoyment  of  these  mutual  privileges.  It  is  true  that 
the  crossing  imposes  a  new  burden,  but  it  is  one  to  which  it  is  subject  by  the 
nature  of  the  case  and  the  terms  of  its  charter.'  Other  courts  of  acknow- 
ledged authority  sustain  the  same  general  doctrine." 

We  think  these  ^iews  applicable  here,  and  it  is  our  opinion  that 
since  the  legislature  left  the  item  of  expense  of  operation  for  appor- 
tionment by  the  Commission  between  the  companies,  it  would  not  be 
unjust  in  this  case,  in  view  of  the  fact  that  all  other  expenses  are 
cast  by  law  upon  the  new  comer,  to  require  the  expense  of  operating 
the  plant  to  be  paid  equally  by  the  companies,  which  will  accordingly 
be  done. 

ORDER. 

It  is  ordered  and  decided  that  petitioner,  the  Tamaroa  &  Mt. 
Vernon  Railway  Company,  have  leave  to  cross  with  its  track  at  grade 
the  track  of  the  respondent,  the  Louisville  &  Nashville  Railroad 
Company,  at  the  place  and  in  the  manner  specified  in  the  petition  on 
file  in  this  cause, — right  of  way  for  such  crossing  being  first  obtained 
under  the  laws  of  Illinois  relating  to  Eminent  Domain. 

It  is  ordered  further  that  the  crossing  of  tracks  to  be  thus  formed, 
be  protected  by  a  system  of  interlocking  signals  and  switches,  to  be 
agreed  upon  by  the  parties,  with  this  Commission's  approval,  if  the 
parties  are  able  to  agree,  the  cost  of  construction  and  the  expense  of 
maintenance  of  which  device  shall  be  paid  for  by  the  Tamaroa  &  Mt. 
Vernon  Railway  Company,  as  provided  by  statute,  but  it  is  hereby 
ordered  and  decided  by  the  Commission  that  of  the  cost  of  the  opera- 
tion of  such  interlocking  device,  the  said  Tamaroa  &  Mt.  Vernon 
Railway  Company,  petitioner,  shall  pay  one-half,  and  the  said  Louis- 
ville &  Nashville  Railroad  Company,  respondent,  shall  pay  one-half. 
And  inasmuch  as  the  statute  only  directs  the  Railroad  and  Ware- 
house Commission  to  prescribe  by  order  a  plan  of  the  interlocking  in 
case  the  parties  are  unable  to  agree,  therefore,  it  is  ordered  that  this 
petition  be  further  held  under  consideration  by  the  Commission 
pending  the  efforts  of  petitioner  and  respondent  to  agree  upon  a 
plan  of  interlocking. 

Adopted  June  21,  1892. 


No.    21 


INTERLOCKING  CASE 


No.    I 


THE  CHICAGO  &  ALTON  RAILROAD  Co., 
vs. 

THE  CHICAGO  &  WESTERN  INDIANA  RAILROAD  Co., 
{THE  BELT  RAILWAY  COMPANY  OF  CHICAGO,  LESSEE), 

AND 
THE  ATCHISON,  TOPEKA  &  SANTA  FE  RAILROAD  Co. 


CROSSING    NEAR  HAWTHORNE 


Opinion  and  Order  of  Commission  adopted  November  11,  1892, 

on  Application  of  Chicago  &  "Western  Indiana  Railroad 

Company     (The  Belt  Railway  Company  of  Chicago, 

lessee),  for   Modification   of  Original  Order, 

entered  December  1O,  1891. 


183 


OPINION  OF  THE  COMMISSION. 


BY  PHILLIPS,  CHAIRMAN. 

This  is  an  application  by  the  Chicago  &  Western  Indiana  Rail- 
road Company  (The  Belt  Railway  Company  of  Chicago,  lessee),  to 
modify  the  order  heretofore  entered  in  the  above  petition  and  cita- 
tion upon  the  point  of  .the  division  of  the  original  cost  of  the  con- 
struction of  the  device  ordered,  and  of  the  expense  of  the  maintenance 
of  said  device  in  good  order  and  repair. 

In  the  original  opinion  entered  in  this  matter,  it  was  said: 

"There  are  a  switch  and  a  signal  which  add  two  levers  in  the  tower,  and 
are  located  between  the  tracks  of  the  Alton  and  the  Atchispn,  upon  one  of  the 
Western  Indiana  tracks.  These  appliances  are  not  essential  to  the  interlock- 
ing of  the  crossing,  but  are  put  in,  we  learn  from  the  consulting  engineer,  at 
the  request  of  the  Western  Indiana  and  Belt  Companies  for  their  exclusive 
accommodation.  So  far  as  the  other  companies  are  concerned,  the  crossings 
could  be  perfectly  interlocked  without  these  appliances.  We  therefore  think 
it  not  unjust  to  charge  the  extra  cost  of  these  particular  appliances  to  the 
Western  Indiana  and  Belt  Companies.  Without  these,  the  number  of  switches, 
signals  and  levers  would  be  exactly  equal  upon  all  these  lines.  Apportioning 
first  cost  upon  levers,  which,  under  the  circumstances,  we  think  would  be 
just,  the  Chicago  &  Western  Indiana  and  the  Belt  Companies  would  pay  fpur- 
tenths  of  the  first  cost,  the  Chicago  &  Alton  three-tenths,  and  the  Atchison 
three-tenths.  We  think  such  an  apportionment  of  the  first  cost  of  the  plant 
would  be  fair  under  the  circumstances." 

In  the  order  for  the  interlocking,  entered  on  the  same  day  the 
opinion  was  delivered,  the  following  provision  was  incorporated  upon 
the  subject  of  this  present  application: 

"That  it  would  be  just  and  equitable  for  the  companies  named  in  said  pe- 
tition and  citation  to  pay  for  the  original  cost  and  future  maintenance  of  said 
device,  as  follows:  The  Chicago  &  Western  Indiana  Railroad  Company  (The 
Belt  Railway  Company  of  Chicago,  lessee),  four-tenths;  the  Chicago  &  Alton 
Railroad  Company,  three-tenths,  and  the  Atchison,  Topeka  &  Santa  Fe  Rail- 
road Company,  three-tenths." 

The  present  application  is  made  upon  the  ground  that  the  division 
of  this  expense  was  made  by  the  Commission  under  a  misapprehen- 
sion of  the  facts.  It  is  urged  that  the  Commission  have  made  a  mis- 
take, and  have  power  to  correct  it,  and  should  correct  it.  The  ground 
chiefly  urged  for  this  application  is,  that  the  Commission  erred  in 
believing  and  saying  that  the  switch  and  signal  located  upon  the 
track  of  the  Western  Indiana  Company,  between  the  Alton  and 
Atchison  tracks,  is  of  benefit  only  to  the  Western  Indiana  and  Belt 


184 

Companies.  The  representatives  of  the  latter  companies  admit  that 
said  switch  and  signal  were  put  in  at  their  request,  but  deny  that 
they  were  put  in  for  their  exclusive  benefit.  It  was  not,  howerer, 
shown  upon  the  hearing  that  the  Chicago  &  Alton  Company  is  in 
any  way  benefited  by  this  switch  and  signal.  We  understand  the 
claim,  so  far  as  the  Alton  Company  is  concerned,  was  abandoned, 
but  it  was  urged  upon  the  hearing  that  the  Atchison  Company  is 
benefited  equally  with  the  Western  Indiana  and  Belt  Companies. 

Upon  the  further  hearing  of  this  case  under  this  application,  it 
becomes  apparent  that  the  Atchison  Company  is,  to  a  small  extent, 
benefited  by  these  appliances,  but  the  benefit  it  derives  from  them 
is  very  much  less  than  the  benefit  derived  by  the  Western  Indiana 
and  Belt  Companies.  It  would  be  very  difficult,  indeed,  to  apportion 
the  added  cost  of  this  switch  and  signal  between  the  companies  upon 
the  evidence  before  us.  The  benefit  conferred  upon  the  Atchison 
Company  being  so  slight  compared  with  the  benefits  derived  by  the 
Western  Indiana  and  Belt  Companies,  and  the  appliances  having 
been  originally  placed  where  they  are  upon  the  request  of  the  latter 
companies,  we  are  unable  to  see  our  way  to  charge  any  part  of  them 
to  the  Atchison  Company. 

It  is  very  apparent,  however,  that  there  is  an  error  in  this  order. 
Dividing  the  cost  upon  the  basis  laid  down  by  the  Commission,  there 
is  ao  possible  way  in  which  the  division  into  tenths  could  have  been 
made  except  through  a  blunder,  which  was  in  fact  committed. 

It  will  be  observed  the  opinion  says:  "Without  these  (meaning 
the  switch  and  signal  in  question),  the  number  of  switches,  signals 
and  levers  would  be  exactly  equal  upon  all  these  lines."  This  is  true. 
Counting  the  switches,  signals  and  levers  upon  each  of  the  three 
roads  concerned,  aside  from  the  extra  derail  and  signal  in  question, 
the  number  is  thirty,  there  being  ten  switches  and  signals  on  each 
line.  Therefore,  without  the  extra  derail  and  signal,  the  order  would 
correctly  have  been  for  each  company  to  pay  one-third  of  the  cost. 
But  when  the  extra  derail  and  signal  are  added  they  make  the  num- 
ber thirty-two  in  all;  and  upon  the  basis  adopted,  the  cost  would  re- 
solve itself  into  thirty- seconds  instead  of  tenths.  On  that  basis  the 
Chicago  &  Alton  Company  should  pay  ten  thirty-seconds,  the  Atch- 
ison Company  ten  thirty-seconds,  and  the  Western  Indiana  and  Belt 
Companies  twelve  thirty- seconds,  which  would  be  a  less  proportion 
to  be  paid  by  the  latter.  The  exact  excess  charged  to  the  Western 
Indiana  and  Belt  Companies  on  this  basis,  is  one-fortieth.  Hence  it 
is  no  more  than  just  that  this  mistake  should  be  corrected  and  the 
order  modified. 

The  Commission  are  satisfied,  further,  upon  consideration  of  the 
whole  matter,  that  a  better  way  to  have  arrived  at  the  extra  cost  to 
be  paid  by  the  Western  Indiana  and  Belt  Companies,  would  have 
been  to  tax  these  companies  not  with  an  extrajproportionate  share  of 
the  whole  cost,  but  with  the  actual  cost  of  the  switch  and  signal  in 
controversy.  If  these  companies  pay  the  actual  extra  cost  of  these 


185 

appliances,  it  is  all  that  could  be  justly  demanded,  and  that  extra 
cost,  the  Commission  are  informed,  would  be  less  than  a  proportion- 
ate share  based  upon  the  number  of  levers,  as  attempted  to  be  done 
in  the  original  order. 

It  is,  therefore,  directed  that  the  Secretary  enter  upon  the  docket 
the  following  modified  order  upon  the  particular  question  of  the  ap- 
portionment of  the  original  cost  and  future  maintenance  of  said 
device — that  is  to  say: 

MODIFIED   ORDER. 

"Each  of  the  said  companies,  to- wit:  The  Chicago  &  Western 
Indiana  Railroad  Company  (The  Belt  Railway  Companjr  of  Chicago, 
lessee),  the  Chicago  &  Alton  Railroad  Company,  and  the  Atchison, 
Topeka  &  Santa  Fe  Railroad  Company,  shall  pay  one-third  part  of 
the  original  cost  of  construction,  and  of  the  expense  of  maintenance 
of  said  entire  device,  with  the  exception  of  the  switch  and  signal 
located  upon  the  track  of  the  Chicago  &  Western  Indiana  Railroad 
Company,  between  the  tracks  of  the  Chicago  &  Alton  Railroad  Com- 
pany and  the  Atchison,  Topeka  &  Santa  Fe  Railroad  Company;  and 
as  to  the  original  cost  and  expense  of  maintenance  of  the  said  last 
mentioned  switch  and  signal  so  located,  it  is  ordered  that  such  actual 
cost  and  expense  be  paid  by  the  Chicago  &  Western  Indiana  Rail- 
road Company  (The  Belt  Railway  Company  of  Chicago,  lessee). 

"And  it  is  further  ordered,  that  the  original  order  entered  in  said 
cause,  except  as  the  same  is  hereby  expressly  modified,  shall  stand  as 
originally  entered  in  this  proceeding." 


BEFORE  THE 


RAILROAD  AND  WAREHODSE  COMMISSION 


STATE  ©F  ILLINOIS 


THE  BALTIMORE  &  OHIO  &  CHICAGO  RAILROAD  Co., 

PETITIONER, 


VS. 


THE  SOUTH  CHICAGO  CITY  RAILWAY  Co., 

RESPONDENT. 


Petition  No.  10 — For  Protection  of  Crossing  at  Commercial 
Avenue,  South  Chicago. 


APPEARANCES: 

For  Petitioner,  E.  R.  JEWETT,  Attorney. 
For  Respondent,  OSBORN  &  LYNDE,  Attorneys. 


189 


OPINION  OF  COMMISSION. 


OPINION   BY  PHILLIPS,  CHAIRMAN. 

The  petition  in  thia  case  shows  that  the  South  Chicago  City  Rail- 
way Company,  defendant,  "is  seeking  under  and  by  virtue  of  an  or- 
dinance of  the  City  of  Chicago,  to  lay  its  car  tracks  along  and  upon 
Commercial  Avenue,  and  to  cross  the  tracks  of  petitioner  in  said 
Commercial  Avenue  at  the  west  end  of  your  petitioner's  yards,  at 
grade,  and  without  precaution  looking  to  the  safety  of  the  public,  or 
to  the  protection  of  human  life  transported  by  the  said  Street  Rail- 
way Company  or  petitioner;"  also  that  said  Street  Railway  Company 
proposes  to  operate  its  line  with  electrical  power,  under  the  system 
known  as  the  "trolley  system,"  and  that  it  (defendant)  "proposes  to 
put  in  the  grade  crossing  aforesaid,  irrespective  of  the  control  exer- 
cised by  your  Honorable  Board  in  the  matter  of  the  place  and  man- 
ner of  railroads  crossing  or  intersecting  each  other;  and  without  re- 
gard to  the  safety  of  the  public." 

Accompanying  said  petition  is  a  plat  showing  the  location  of  the 
proposed  crossing;  and  the  petition  "prays  that  action  may  be  taken 
by  your  Honorable  Board  in  the  premises,  to  the  end  that  said  cross- 
ing may  be  rendered  safe,  and  as  far  as  possible  free  from  danger  to 
the  public." 

It  is  objected  by  the  defendant  among  other  things,  that  the  peti- 
tion does  not  state  a  case  coming  within  the  provisions  of  the  statute 
of  Illinois  relating  to  railroad  crossings,  and  does  not  ask  any  relief 
which  comes  within  the  jurisdiction  of  this  Board. 

The  only  power  of  the  Commission  to  compel  the  protection  of 
railway  crossings  must  be  found  in  the  act  entitled,  "An  Act  to  pro- 
tect persons  and  property  from  danger  at  the  crossings  and  junctions 
of  railroads,"  etc.,  approved  June  2,  189J .  The  first  section  of  that 
act  provides: 

"That  in  every  case  where  the  main  tracks  of  two  or  more  railroads  cross 
at  grade  in  this  State,  any  company  owning  or  operating  any  one  of  such 
tracks  whose  managers  may  desire  to  unite  with  others  by  protecting  such 
crossing  with  interlocking,  or  other  safety  devices,  may  file  with  the  Railroad 
and  Warehouse  Commission,  a  petition  stating  the  facts  of  the  situation,  and 
asking  said  Railroad  and  Warehouse  Commission  to  order  such  crossing  to  be 
protected  by  interlocking  signals,  devices  and  switches,  or  other  safety  ap- 
pliances, etc." 


190 

Section  3  of  the  act  directs  the  manner  of  proceeding  to  hear  cases 
for  the  protection  of  crossings,  giving  the  Commission  power  to  ap- 
portion costs  and  expenses,  and  concludes  as  follows: 

"In  case,  however,  one  railroad  company  shall  hereafter  seek  to  cross  at 
grade  with  its  track  or  tracks,  the  track  or  tracks  of  another  railroad  com- 
pany, and  the  Railroad  and  Warehouse  Commission  shall  determine  that  in- 
terlocking or  other  safety  appliances  shall  be  put  in,  the  railroad  company 
seeking  to  cross  at  grade  shall  be  compelled  to  pay  all  costs  of  such  appliances, 
together  with  the  expense  of  putting  them  in  and  the  future  maintenance 
thereof." 

Do  these  provisions  confer  upon  the  Commission  power  to  order 
the  protection  of  the  crossing  described  in  the  petition?  In  other 
words,  is  the  South  Chicago  City  Railway  a  "railroad"  within  the 
meaning  of  the  Interlocking  Act  of  1891?  We  think  not.  We  are 
constrained  to  hold  that  this  Commission  has  no  jurisdiction  in  the 
premises.  The  legislature  has  provided  for  the  incorporation  and 
regulation  of  street  railways  by  an  act  separate  and  different  from 
that  which  pertains  to  the  incorporation  and  regulation  of  railroads 
proper.  Street  railways  were  evidently  not  intended  to  be  included  in 
those  acts  of  the  legislature  which  confer  jurisdiction  upon  the  Com- 
mission to  make  and  enforce  schedules  of  maximum  rates,  to  cause 
dangerous  roads  to  be  repaired  and  other  like  powers.  Those  acts 
have  always  been  understood  to  refer  to  railroads,  and  not  to  street 
railways;  and  there  is  nothing  to  indicate  that  the  legislature  in- 
tended that  the  Act  of  1891  for  the  protection  of  railroad  crossings 
was  intended  to  have  a  wider  scope  than  the  previous  Acts. 

The  fact  that  another  power,  electricity  has  been  substituted 
which  supplies  a  higher  rate  of  speed,  and  makes  street  cars  more 
dangerous  instrumentalities  than  they  were  in  the  days  when  horse 
power  was  exclusively  used,  has  not,  we  think,  made  them  "railroads" 
within  the  meaning  of  such  acts  as  that  now  under  contempla- 
tion. 

The  petition  does  not  pray  for  specific  relief.  It  asks  that  "action 
may  be  taken  to  the  end  that  said  crossing  may  be  rendered  safe, 
etc."  The  only  provision  looking  to  the  safety  at  crossings  which 
the  Commission  has  power  to  enforce  is  their  protection  by  interlock- 
ing signals  or  derails,  or  other  like  safety  appliances.  We  have 
sought  to  avoid  building  up  any  technical  system  of  pleading  and 
practice  before  the  Commission  in  these  cases,  and  might  accordingly 
overlook  the  very  general  terms  of  the  prayer  of  this  petition,  were 
the  case  one  over  which  we  deem  ourselves  to  have  any  power. 
Holding  as  we  do,  however,  that  this  Board  is  without  jurisdiction 
in  such  a  case,  the  petition  must  be  dismissed,  and  the  Secretary  will 
enter  an  order  accordingly. 


191 

FINAL   ORDER   OF   THE  COMMISSION. 

Tuesday,  December  27,  1892. 

At  a  session  of  the  Railroad  and  Warehouse  Commission  of  the 
State  of  Illinois,  held  at  its  office  in  Springfield,  Illinois,  on  this  day, 
present — Isaac  N.  Phillips  and  J.  C.  Willis,  Commissioners,  and  J. 
H.  Paddock,  Secretary — the  following  proceedings  were  had  in  this 
cause : 

And  now  this  petition  having  come  on  for  final  hearing  and  deter- 
mination before  the  Commission  this  27th  day  of  December,  1892, 
and  the  Commission  having  considered  the  evidence  taken  herein 
and  the  arguments  of  the  counsel  made  before  the  Commission  at  a 
former  session,  and  being  fully  advised  in  the  premises,  doth  find 
that  this  Commission  is  without  jurisdiction  in  this  case. 

It  is  therefore  ordered  by  the  Commission  that  the  said  petition 
be  dismissed. 

Adopted  December  27,  1892. 


BEFORE  THE 


OF  THE 


STATE  OF  ILLINOIS 


THE  CHICAGO,  &   ALTON  RAILROAD  Co., 

PETITIONER. 


vs. 


THE  ILLINOIS  CENTRAL  RAILROAD^CO., 
RESPONDENT. 


Petition  No.  14 — Protection  of  Crossing  at  Normal. 


APPEARANCES: 

For  Petitioner— WM .  BROWN,  General  Solicitor. 
For  Respondent— J.  F .  WALiLi ACE,  Chief  Engineer. 
—13  O. 


195 


OPINION  OF  COMMISSION. 


BY  PHILLIPS,  CHAIRMAN. 

Respondent  does  not  object  to  an  order  for  the  interlocking  of  the 
•crossing  described  in  this  petition.  The  sole  question  made  is  as 
to  the  division  of  the  cost.  One  item,  that  of  the  "operation"  of  the 
device,  is  not,  however,  in  controversy,  it  being  agreed  that  the  com- 
panies should  pay  this  equally.  The  question  made  is,  how  the  first 
cost  of  the  interlocking  device,  and  the  expense  of  its  maintenance, 
shall  be  paid  for. 

Mr.  Wallace,  Chief  Engineer  of  the  Illinois  Central  road,  has 
urged  upon  us  with  much  force  of  reason  a  general  basis  for  the  di- 
vision of  expenses  in  cases  of  this  kind.  We  fully  recognize  the  de- 
sirability of  adopting  some  just  rule  of  determination  to  be  applied 
to  such  cases;  but  we  have  heretofore  hesitated  to  lay  down  an  in- 
flexible rule,  knowing  well  that  experience  sometimes  spoils  theories, 
and  that  it  is  not  possible  to  foresee  what  new  conditions  may  arise 
in  future  cases,  not  considered  in  adopting  the  rale. 

Since  discussing  the  different  proposed  rules  of  determination  in 
our  opinion  in  the  case  of  the  crossing  at  Paducah  Junction,  we  have 
continued  to  give  the  subject  attention.  We  are  now  strongly  in- 
clined to  adopt,  in  the  main,  the  basis  suggested  by  Mr.  Wallace  as 
a  rule  of  determination  to  be  applied  to  future  cases,  except  those 
which  may  be  very  exceptional  in  their  facts  and  conditions,  or  in 
which  subsisting  contract  obligations  may  change  the  rule. 

That  basis  is  as  follows: 

First — Each  company  to  pay  the  original  cost  of  all  the  apparatus 
and  mechanism  used  upon  its  own  tracks,  including  all  signals,  de- 
rails, pipe-lines,  wire-lines,  boxing  and  all  connections  in  its  tracks, 
and  also  the  cost  of  putting  all  these  in  ready  for  use,  and  of  main- 
taining the  same  in  good  repair. 

Second — The  cost  of  the  interlocking  machine  proper  and  the  ex- 
pense of  maintaining  the  same  in  good  working  order  to  be  divided 
between,  or  among,  the  companies  in  the  proportion  that  the  levers 
used  to  operate  the  appliance  in  the  tracks  of  each  company  bear  to 
the  whole  number  of  levers. 


196 

Third — The  cost  of  the  tower  house  wherein-  the  interlocking  ma- 
chine is  housed,  and  the  expense  of  the  operation  of  the  machine, 
(i.  e.,  wages  of  operators) ,  to  be  divided  upon  the  basis  of  the  num- 
ber of  roads  using  the  system. 

We  have  varied  the  proportion  of  Mr.  Wallace  to  the  extent  of 
dividing  the  cost  of  the  tower  on  the  basis  of  the  number  of  roads 
instead  of  upon  the  basis  of  the  number  of  levers.  There  is  little  to 
choose  between  the  two  methods,  but  we  deem  the  division  above 
stated  the  fairest,  as  a  tower  house  would  be  needed  in  any  event, 
and  the  cost  of  such  tower  would  be  little,  if  any,  enhanced  by  a  few 
additional  levers.  We  therefore  think  cost  of  tower  may  be  better 
grouped  with  expense  of  operation,  than  with  the  cost  of  the  inter- 
locking machine. 

We  see  a  possible  difficulty  to  which  this  plan  may  lead,  which  we 
deem  it  proper  to  notice  here.  Under  the  second  point  above,  which 
divides  the  cost  of  the  interlocking  machine  in  proportion  to  the 
levers  used  to  operate  the  appliances  located  on  the  several  tracks,  a 
temptation  will  be  offered  to  reduce  the  number  of  levers  by  making 
each  lever  carry  too  much  work.  The  companies  to  the  present  pro- 
ceeding, being  under  very  enlightened  and  progressive  management, 
are  not  likely  to  fall  into  an  error  so  at  variance  with  good  signaling 
practice.  It  is  not  for  them  particularly  that  we  add  this  caution. 
Any  manifestation  of  the  disposition  stated  in  future  cases  must  be 
corrected  by  the  Consulting  Engineer  of  the  Commission. 

An  order  will  be  entered  in  this  proceeding  providing  for  the  in- 
terlocking of  the  crossing  described  in  the  petition,  and  apportioning 
costs  and  expenses  in  the  manner  hereinabove  specified.  Our  Con- 
sulting Engineer  has  prepared  a  plan  for  the  interlocking  of  this 
crossing  which  we  submit  to  the  companies  as  a  suggestion  of  wha^ 
is  deemed  to  be  requisite  for  the  proper  protection  of  the  crossing. 
The  companies  have  a  right,  under  the  statute,  to  agree  upon  details 
of  plan,  if  they  can.  In  default  of  their  speedy  agreement  in  this 
particular,  we  will  enter  a  further  order  covering  that  part  of  the 
case. 

FINAL  ORDER  OF  THE  COMMISSION. 

TUESDAY,  December  27,  1892. 

At  a  session  of  the  Railroad  and  Warehouse  Commission  of  the 
State  of  Illinois,  held  at  its  office  in  Springfield,  Illinois,  on  this  day, 
present — Isaac  N.  Phillips  and  J.  C.  Willis,  Commissioners,  and  J. 
H.  Paddock,  Secretary — the  following  proceedings  were  had  in  this 
cause: 

And  now  this  petition  having  come  on  for  final  hearing  and  deter- 
mination before  the  Commission  this  27th  day  of  December,  1892, 
and  the  Commission  having  considered  the  evidence  taken  herein, 
the  agreements  made  by  the  parties  hereto,  and  the  arguments  made 
before  the  Commission  at  a  former  session,  and  being  fully  advised 
in  the  premises  doth  find: 


197 

That  the  public  good  requires  that  the  crossing  formed  at  Normal, 
Illinois,  by  the  tracks  of  the  Chicago  &  Alton  Railroad  Company 
and  the  Illinois  Central  Railroad  Company,  be  protected  and  operated 
by  an  interlocking  device  or  machine,  and  that  the  following  would 
be  a  just  and  equitable  basis  on  which  to  apportion  the  cost  of  said 
device  or  machine: 

First — Each  company  to  pay  the  original  cost  of  all  the  apparatus 
and  mechanism  used  upon  its  own  tracks,  including  all  signals,  de- 
rails, pipe-lines,  wire-lines,  boxing  and  all  connections  in  its  tracks, 
and  also  the  cost  of  putting  all  these  in  ready  for  use,  and  of  main- 
taining the  same  in  good  repair. 

Second — The  cost  of  the  interlocking  machine  proper,  and  the  ex- 
pense of  maintaining  the  same  in  good  working  order  to  be  divided 
between  the  two  companies  in  the  proportion  that  the  levers  used  to 
operate  the  appliance  in  the  tracks  of  each  company  bear  to  the  whole 
number  of  levers. 

Third — The  cost  of  the  tower  house  wherein  the  interlocking 
machine  is  housed,  and  the  expense  of  the  operation  of  the  machine 
(i.  e.,  wages  of  operators)  to  be  borne  equally  by  the  petitioner  and 
respondent. 

It  is  therefore  ordered  by  the  Commission  that  the  said  companies, 
to- wit:  The  Chicago  &  Alton  Railroad  Company  and  the  Illinois 
Central  Railroad  Company  forthwith  proceed  to  protect  said  crossing 
by  a  system  of  interlocking  signals  and  switches,  to  be  agreed  upon 
by  the  parties,  with  this  Commission's  approval,  if  the  parties  are 
able  to  agree,  the  cost  of  construction,  the  expense  of  maintenance 
and  the  cost  of  the  operation  of  such  interlocking  device  to  be  divided 
upon  the  following  basis: 

First — Each  company  to  pay  the  original  cost  of  all  the  apparatus 
and  mechanism  used  upon  its  own  tracks,  including  all  signals,  de- 
rails, pipe-lines,  wire-lines,  boxing  and  all  connections  in  its  tracks, 
and  also  the  cost  of  putting  all  these  in  ready  for  use  and  of  main- 
taining the  same  in  good  repair. 

Second — The  cost  of  the  interlocking  machine  proper  and  the  ex 
pense  of  maintaining  the  same  in  good  working  order  to  be  divided 
between  the  two  companies  in  the  proportion  that  the  levers  used  to 
operate  the  appliance  in  the  tracks  of  each  company  bear  to  the  whole 
number  of  levers. 

Third — The  cost  of  the  tower  house  wherein  the  interlocking  ma- 
chine is  housed,  and  the  expense  of  the  operation  of  the  machine 
(i.  e.,  wages  of  operators)  to  be  borne  equally  by  the  petitioner  and 
respondent. 

It  is  further  ordered  that  this  petition  be  further  held  under  con- 
sideration by  the  Commission  pending  the  efforts  of  petitioner  and 
respondent  to  agree  upon  a  plan  of  interlocking. 

Adopted  December  27,  1892. 


BEFORE  THE 


Railroad  and  Warehouse  Commission 


STATE  OF  ILLINOIS 


THE  PEORIA  &  PEKIN  UNION  RAILWAY  Co., 
IPETITIONER. 


vs. 


THE  PEORIA  TERMINAL  RAILWAY  Co., 

RESPONDENT. 


Protection  of  Crossing  at  Peoria, 


APPEARANCES: 

For  Petitioner— W.  S.  HORTON,  Attorney. 

For  Respondent— GEORGE  B.  FOSTER,  Attorney. 


201 


OPINION  OF  THE  COMMISSION. 


BY  PHILLIPS,  CHAIRMAN. 

The  proposed  crossing,  which  the  petition  prays  to  have  interlocked, 
is  in  the  city  of  Peoria,  at  a  point  on  the  track  of  the  Peoria  &  Pekin 
Union  Railway,  250  feet  from  the  west  end  of  the  Illinois  river  bridge. 
A  crossing  at  the  point  in  question  was  originally  proposed  by  the 
Peoria  &  Farmington  Railway  Company,  which,  at  the  May  Term, 
1883.  of  the  Peoria  County  Court,  obtained  by  judgment  in  condem- 
nation a  right  to  cross  at  this  point  the  right  of  way  and  track  of  the 
Peoria  &  Springfield  Railroad  Company,  to  which  the  latter  company, 
petitioner,  is  the  successor  in  the  property  by  purchase  on  foreclosure. 
The  track  of  the  Peoria  &  Springfield  Railroad  (now  the  Peoria  & 
Pekin  Union)  was  before  that  time  laid  and  being  used,  but  the 
Peoria  &  Farmington  road  was  but  partly  constructed  after  the  con- 
demnation, and  its  track  never  was  laid.  Respondent,  the  Peoria 
Terminal  Railway  Company,  has  succeeded  to  the  Peoria  &  Farming- 
ton  franchise  and  rights,  and  is  now  proceeding  to  construct  the  road 
on  the  line  of  condemnation,  thus  giving  rise  to  the  present  proceed- 
ing. 

The  questions  only  are  presented  here.  The  first  is,  does  the 
public  good  demand  the  protection  of  the  proposed  crossing  under 
the  Act  of  1891?  We  do  not  understand  the  respondent  seriously  to 
contest  this  proposition.  The  P.  &  P.  U.  track  at  the  point  of  the 
proposed  crossing  is  used  by  three  other  companies  under  lease, 
namely:  the  L.  E.  &  W.,  the  J.  S.  E.  and  the  "Big  Four."  The 
trains,  both  passenger  and  freight,  passing  the  point  are  numerous. 
Proceeding  westward  into  the  city  from  the  point  of  crossing,  the 
P.  &  P.  U.  ascends  a  grade,  and  describes  a  curve,  while  on  the  east 
very  near,  is  the  draw-bridge  of  the  P.  &  P.  U.  across  the  Illinois 
river,  a  navigable  stream.  In  this  day,  when  good  practice  is  fast 
leading  to  the  protection  of  all  railroad  croosings,  on  grounds  of 
•economy  as  well  as  safety,  we  could  not  long  hesitate  to  hold  that 
this  crossing  requires  protection,  even  though  it  is  true  as  contended, 
that  the  Peoria  Terminal  Railway  Company  will  haul  but  few  trains 
over  the  crossing. 

The  remaining  question  concerns  cost  and  expense.  Is  this  case 
one  wherein  the  Commission  has  discretion  to  apportion  first  cost  of 
the  apparatus,  and  the  expense  of  putting  in  and  maintaining  the  same 
between  the  companies;  or  is  it  one  in  which  these  items  of  cost  and 
•expense  are,  by  the  statute,  cast  upon  respondent,  as  being  a  com- 
pany "seeking  to  cross"  with  its  track  the  track  of  another  company? 


202 

Section  8  of  the  act  of  1891  for  the  protection  of  crossings  closes 
with  the  following  provision  relative  to  crossings  which  might  be 
constructed  after  the  passage  of  the  act: 

"In  case,  however,  one  railroad  company  shall  hereafter  seek  to  cross  at 
grade  with  its  track  or  tracks,  the  track  or  tracks  of  another  railroad  com- 
pany, and  the  Railroad  and  Warehouse  Commission  shall  determine  that  in- 
terlocking or  other  safety  appliances  shall  be  put  in,  the  railroad  company 
seeking  to  cross  at  grade  shall  be  compelled  to  pay  all  cost  of  such  appliances, 
together  with  the  expense  of  putting  them  in  and  the  future  maintenance 
thereof." 

Here,  then,  is  the  question:  Does  the  judgment  of  the  County 
Court  in  condemnation'entitle  respondent  to  cross  the  the  track  of  pe- 
titioner without  assuming  those  expenses  of  interlocking,  mentioned 
in  the  provision  above  quoted,  and  now  adjudged  by  us  to  be  re- 
quired at  this  crossing  for  the  public  good? 

It  is  important  to  note  that  the  function  of  the  Commission  under 
the  act  of  1891  is  wholly  distinct  from  the  function  of  the  County 
Court  in  condemnation.  The  two  lines  of  action  do  not  touch  at  any 
point.  Condemnation  fixes  the  damages  for  the  use  declared;  the 
Commission  enforces  a  police  regulation  applied  to  the  operation  of 
trains,  and  designed  for  the  public  safety.  As  regards  claims  for 
damages,  respondent  reads  its  title  clear  in  the  judgment  of  condem- 
nation. As  regards  right  of  way,  it  has,  in  legal  contemplation,  al- 
ready crossed  petitioner's  track.  As  regards  the  police  regulation 
embraced  in  the  act  of  1891,  it  has  not  crossed,  but  is  still  "seeking 
to  cross."  Had  no  judgment  of  condemnation  been  obtained  prior 
to  the  passage  of  the  act  of  1891,  we  concede  that  respondent  might 
even  now,  with  that  act  in  full  force,  proceed  to  condemn  and  get 
judgment,  placing  itself  in  precisely  the  legal  attitude  it  now  occu- 
pies, leaving  the  interlocking  still  unsettled  as  it  now  is.  In  other 
words,  it  could,  we  think,  in  face  of  the  interlocking  act,  obtain  its- 
right  to  cross,  so  far  as  damages  and  right  of  way  are  concerned,  but 
the  question  of  the  protection  of  the  crossing  to  be  made,  would  re- 
main as  it  remains  now.  That  question  would  legally  arise  when 
respondent  should  physically  "seek  to  cross  with  its  track."  By  getting- 
its  right  of  way  through  condemnation  proceedings,  respondent  did 
not  obtain  exemption  from  the  operation  of  such  police  regulations 
as  were  then  in  force,  or  might  afterwards  be  provided  by  law. 

Such  is  the  view  we  are  constrained  to  take.  Much  nice  reason- 
ing might  be  indulged,  but  what  has  been  said  is  deemed  sufficient 
to  express  our  view,  which  is,  that  respondent  comes  within  the  pro- 
visions of  the  statute  above  quoted,  which  casts  upon  the  road  seek- 
ing to  cross,  (1)  the  first  cost  of  the  machine  to  be  used;  (2)  the 
expense  of  putting  the  machine  in;  (3)  the  expense  of  maintaining 
the  same  in  good  order  and  repair. 

The  question  whether  this  statute  is  broad  enough  to  compel  the 
company  seeking  to  cross  to  pay  also  the  expense  of  operating  the 
machine,  was  a  subject  of  contention  before  the  Commission  in  the 
case  of  the  Tamaroa  &  Mt.  Vernon  Ry.  Co.  vs.  The  Louisville  & 
Nashville  R.  R.  Co.,  which  was  decided  by  us  June  21,  1892.  We 
refer  to  the  opinion  in  that  case  for  the  construction  of  the  statute 


203 

in  this  particular.  We  arrived  then  at  a  conclusion  which  we  see  no- 
reason  to  change,  namely:  That  the  expense  of  ''operating"  the 
machine  was,  by  the  statute,  left  to  be  apportioned  by  the  Commis- 
sion in  its  discretion.  In  that  case  we  divided  such  expense  equally, 
and  we  think  the  same  should  be  done  here. 

An  order  will  be  entered  in  this  cafle  in  accordance  with  the  views 
here  expressed,  which  order  will  embrace  the  interlocking  of  the 
crossing  and  the  fixing  of  the  costs  and  expenses  to  be  paid  as  herein 
indicated.  But  the  companies  still  have  a  right  under  the  statute,  to 
agree  upon  the  plan  of  the  interlocking  if  they  can  do  so,  subject  to 
the  approval  of  the  Commission.  The  order  therefore  entered  will 
not  embrace  specifically  the  details  of  the  device  to  be  put  in,  that 
question  being  left  for  the  parties  to  agree  upon,  if  they  can.  In 
that  connection  we  suggest  that  the  Consulting  Engineer  of  the 
Commission,  who  is  an  expert  in  such  matters,  and  has  given  the 
subject  of  interlocking  very  large  attention,  be  consulted  by  the 
parties. 

TUESDAY,  December  27,  1892. 

At  a  session  of  the  Railroad  and  Warehouse  Commission  of  the 
State  of  Illinois,  held  at  its  office  in  Springfield,  Illinois,  on  this 
day,  present,  Isaac  N.  Phillips  and  J.  C.  Willis,  Commissioners,  and 
J.  H.  Paddock,  Secretary,  the  following  proceedings  were  had  in  this 
cause: 

And  now  this  petition  having  come  on  for  final  hearing  and  de- 
termination before  the  Commission  this  27th  day  of  December,  1892, 
and  the  Commission  having  considered  the  evidence  taken  herein 
and  the  arguments  of  the  counsel  made  before  the  Commission  at  a 
former  session,  and  being  fully  advised  in  the  premises,  on  consider- 
ation doth  find : 

That  the  public  good  requires  that  the  crossing  to  be  formed  at 
Peoria,  Illinois,  by  the  tracks  of  the  Peoria  and  Pekln  Union  Rail- 
way Company  and  the  tracks  of  the  Peoria  Terminal  Railway  Com- 
pany be  protected  and  operated  by  an  interlocking  device  or  machine, 
to  be  agreed  upon  by  the  parties,  with  this  Commission's  approval, 
if  the  parties  are  able  to  agree;  that  the  first  cost  of  the  machine, 
the  expense  of  putting  the  machine  in,  and  the  expense  of  maintain- 
ing the  same  in  good  order  and  repair  should  be  paid  for  by  the 
respondent,  the  Peoria  Terminal  Railway  Company,  as  provided  by 
statute;  and  that  it  would  be  just  and  equitable  for  each  of  the  com- 
panies named  in  the  petition  to  pay  one-half  of  the  expense  of  the 
operation  of  such  interlocking  device  or  machine. 

It  is  therefore  ordered  by  the  Commission  that  the  crossing  to  be 
formed  at  Peoria,  Illinois,  by  the  tracks  of  the  Peoria  &  Pekin  Union 
Railway  Company  and  the  Peoria  Terminal  Railway  Company  be- 
protected  and  operated  by  an  interlocking  device,  and  that  the  re- 
spondent, the  Peoria  Terminal  Railway  Company,  pay  the  first  cost, 
of  the  machine,  the  expense  of  putting  the  machine  in,  and  the  ex- 


204 

pense  of  maintaining  the  same  in  good  order  and  repair.  It  is  further 
ordered  by  the  Commission  that  of  the  cost  of  the  operation  of  such 
interlocking  device  the  said  Peoria  &  Pekin  Union  Railway  Com- 
pany, petitioner,  shall  pay  one-half,  and  the  said  Peoria  Terminal 
Railway  Company,  respondent,  shall  pay  one-half.  ^55 

It  is  further  ordered  that  this  petition  be  further  held  under  con- 
sideration by  the  Commission  pending  the  efforts  of  the  petitioner 
and  respondent  to  agree  upon  a  plan  of  interlocking. 

Adopted  December  27, 1892. 


No.  23 

BEFORE  THE 


Railroad  and  Warehouse  Commission 


STATE  OF  ILLINOIS 


INTO. 


CITIZENS  OP  SHAWNEETOWN,  Complainants. 


vs. 


LOUISVILLE  &  NASHVILLE  R.  R.  Co.  Respondent. 


PASSENGER  TRAIN  SERVICE. 


Filed  Aug.  5,  1892. — Hearing  at  Shawneetown,  Aug.  26,  1892. 
Decision  Rendered  Jan.  3,  1893. 


APPEARANCES: 

For  Complainants,  W.  R.  McKERNON  and  THOS.  R.  REID. 
For  Respondent,  J.  M.  HAMILL. 


207 


OPINION  OF  COMMISSION. 


SRINGFIELD,  Jan.  3,  1893. 

Hon.  W.  R.  McKernon,  State's  Attorney,  Shawneetown,  III. 

DEAR  SIR:— Answering  your  letter  of  recent  date  to  Mr.  Paddock, 
Secretary  of  the  Railroad  and  Warehouse  Commission,  wherein  you 
inquire  what  decision  the  Commissioners  have  come  to  upon  the 
complaint  of  the  Citizens  of  Shawneetown  against  the  Louisville  & 
Nashville  Railroad  Company,  I  have  to  say,  that  the  Commissioners 
have  as  yet  rendered  no  decision  or  opinion  in  the  case.  Although 
convinced  that  the  passenger  service  between  McLeansboro  and 
Shawneetown  is  not  such  as  is  desirable,  it  seems  to  be  very  ques- 
tionable whether  the  law  affords  any  remedy  for  the  unpleasant  state 
of  affairs  which  exists.  I  will  here  briefly  state  the  difficulties  which 
the  Commissioners  have  encountered  in  their  attempt  to  find  a  way 
to  afford  legal  relief  to  the  citizens  of  Shawneetown. 

The  complaint  of  the  citizens  of  Ben  ton,  Franklin  county,  against 
the  "Cairo  Short  Line"  embodied,  substantially,  the  same  state  of 
facts  presented  in  the  complaint  of  the  citizens  of  Shawneetown. 
The  Commissioners  being  in  doubt  in  the  Benton  case,  and  having 
in  view  the  fact  that  the  Attorney  General  is  made,  by  statute,  their 
legal  adviser,  referred  the  whole  question  of  their  power  to  compel 
additional  train  service,  to  the  Attorney  General.  His  elaborate 
opinion  upon  this  question,  and  his  view  of  the  law  applicable  to  the 
facts  presented  in  the  Benton  petition,  will  be  found  printed  in  our 
report  of  1889,  p.  196. 

The  conclusion  of  the  Attorney  General  was  that  the  Railway 
Commissioners  of  Illinois  are  without  power  to  enforce  relief  upon 
the  state  of  facts  presented  by  the  citizens  of  Benton,  which  facts, 
we  have  before  said,  are  practically  identical  with  those  presented  in 
your  petition. 

It  appeared  in  the  Benton  case,  from  statements  made  by  the 
auditor  of  the  company,  that  the  line  running  through  Benton  was 
being  operated  at  a  loss.  The  same  fact  appears  with  reference  to 
the  line  between  Shawneetown  and  McLeansboro,  from  the  statement 
produced  by  Superintendent  Dickson,  and  sworn  to  by  him  as  a  cor- 
rect summary  of  what  appears  from  the  books  of  the  auditor.  In 
the  Benton  case,  it  appeared  that  the  line  operated  under  the  name 
of  the  "Cairo  Short  Line,"  as  a  whole,  earned  money  over  and  above 
expenses.  Attorney  General  Hunt,  in  his  opinion,  discussing  the 


208 

question  whether  the  surplus  revenues  from  other  lines  furnished  a 
legal  basis  for  compelling  the  company  to  operate  additional  trains 
on  the  Eldorado  division,  which  was  losing  money  upon  the  train 
already  in  use,  says: 

"I  have  given  this  matter  much  consideration,  have  found  no  case  which 
sustains  that  position,  and  have  serious  doubts  whether  such  liability  can  be 
forced.  The  sworn  report  of  the  auditor  of  the  company,  submitted  with 
the  company's  answer,  and  not  controverted,  shows  that  in  the  five  years- 
1884  to  1888,  inclusive — the  total  loss  in  operating  the  Belleville  &  Eldorado 
line  was  $44,810.64.  With  this  exhibit,  and  on  the  statement  of  facts  on 
which  the  complaint  in  this  cose  is  based,  I  do  not  believe  that  a  court  would, 
in  a  proceeding  in  the  nature  of  quo  warranto,  hold  the  company  liable  or  for- 
feit its  franchise  for  refusing  to  increase  its  losses  in  operating  the  line." 

The  opinion  of  the  Attorney  General  on  this  point  is  strongly  sup- 
ported by  the  case  of  the  Fitchburg  R.  R.  Co.  vs.  Commonwealth,  12 
Gray,  180,  and  was  doubtless  examined  by  him  upon  this  point, 
though  it  is  not  cited  in  his  opinion. 

We  note  what  you  say  about  the  unfairness  of  considering  the  line 
from  McLeansboro  to  Shawneetwn  as  merely  a  branch,  and  not  as 
part  and  parcel  of  the  entire  line  known  as  the  Southeast  &  St.  Louis, 
and  also  your  criticism  of  the  manner  in  which  the  statement  of  the 
company  is  made  up,  and  we  might  incline  to  take  your  view  of  these 
matters — at  least  so  far  as  to  order  an  expert  examination  of  the  books 
of  the  company  for  the  purpose  of  getting  a  corrected  statement  of 
earnings  and  expenses — were  it  not  for  the  fact  that  there  seems  to 
be  an  insuperable  legal  obstacle  in  the  way  of  an  action  in  this  case, 
independently  of  the  question  whether  the  line  makes  or  loses 
money.  That  obstacle  is  found  in  the  very  imperfect  state  of  the 
remedial  law  upon  the  subject  of  compelling  train  service  by  a  gen- 
eral writ  in  the  name  of  the  people.  In  our  report  for  the  year  1889, 
page  16,  you  will  find  the  views  of  the  Railroad  Commissioners  of 
this  State  fully  expressed  on  this  subject.  In  that  report  we  urged 
the  necessity  of  further  legislation  to  meet  such  cases  as  that  em- 
braced in  the  petition  of  the  citizens  of  Shawneetown. 

The  Attorney  General  in  his  opinion  upon  the  Benton  case,  to 
which  reference  has  been  made,  held  that  a  writ  of  mandamus  would 
not  lie  to  compel  additional  train  service  upon  a  railroad.  His  opin- 
ion was  professedly  based  upon  the  case  of  O.  &  M.  Ry.  Co.  vs.  The 
People,  120  111.,  page  200.  The  learned  Justice  delivering  the  opin- 
ion in  that  case,  used  the  following  language: 

"It  is  believed  no  case  can  be  found,  which,  in  the  absence  of  a  statutory 
requirement,  has  gone  to  the  length  of  holding  that  a  railway  company  may 
be  compelled  by  mandamus  to  increase  the  number  of  trains  on  its  road,  or 
to  run  daily  a  particular  number  of  trains  over  its  road;  and  we  are  satisfied 
there  is  no  common  law  authority  for  making  such  an  order." 

If  this  be  sound  law  (and  it  certainly  is  the  law  in  Illinois  until  re- 
versed) ,  then  it  would  seem  that  there  is  no  means  by  which  the 
Commissioners  could  act  in  the  direction  of  affording  the  relief 
prayed.  To  proceed  to  forfeit  the  franchise  of  the  road  by  a  writ  of 
quo  warranto,  might  entirely  cut  off  the  train  service  of  Shawnee- 
town, and  it  is  not  perceived  how  such  an  action  could  possibly  make 


209 

the  train  service  better.  Orders  of  the  Railway  Commissioners,  you 
are,  of  course,  aware,  have  no  binding  force  as  judgments,  but  re- 
main to  be  enforced  through  the  process  of  the  courts.  Should  we 
make  an  order  in  this  case  which  the  courts  afford  no  remedy  to  en- 
force, the  act  would  be  merely  nugatory,  and  would  afford  your  people 
no  relief. 

For  the  reasons  given,  the  Commissioners  have  not  judged  it  pru- 
dent to  make  any  order  in  the  premises,  and  I  am  authorized  to  say 
that  the  views  here  expressed  meet  the  approval  of  the  Commis- 
sioners, and  may  be  regarded  as  our  opinion  upon  the  case  as  made. 

One  practice  of  the  company  shown  by  the  evidence  is  in  direct 
violation  of  the  statute.  It  was  shown  that  the  company  is  accustomed 
to  haul  freight  cars  in  its  trains  behind  passenger  coaches.  Against 
this  practice  the  statute  denounces  a  penalty,  which  the  company 
incurs  whenever  it  hauls  its  freight  cars  in  this  manner. 

It  was  also  shown  that  the  company  is  accustomed  to  distribute 
cars  upon  its  main  track,  between  stations,  to  be  loaded,  and  that,  on 
the  return,  the  custom  is  to  push  such  freight  cars  ahead  of  the 
locomotive  until  a  siding  is  arrived  at  where  they  can  be .  trans- 
ferred to  the  rear.  True,  it  appears  that  by  this  practice  the  company 
accommodates  many  of  its  patrons,  particularly  those  who  ship 
blocks  and  logs,  thus  saving  them  the  trouble  and  expense  of  trans- 
porting their  freight  to  distant  side  tracks,  which,  it  is  said  would 
render  the  business  unprofitable.  The  Commissioners  can  not,  how- 
ever, take  note  of  these  little  conveniences  which  result  from  viola- 
tions of  the  statute.  Our  duty  is  to  enforce  the  law  as  we  find  it. 
You  are  therefore  authorized  by  the  Commissioners,  as  State's  At- 
torney of  Gallatin  county,  and  as  one  of  the  legel  advisers  of  the 
Commission,  made  so  by  statute,  to  proceed  to  prosecute  violations 
of  the  statute  in  the  particulars  last  noted.  You  are  upon  the  ground, 
and  the  facts  are  accessible  to  you.  You  will  please  advise  us,  how- 
ever, of  such  prosecutions  as  you  may  institute  for  these  violations 
of  the  statute. 

Regretting  that  we  can  not  afford  relief  of  a  more  comprehensive 
character  to  your  people,  I  remain,  sir, 

Very  truly  yours, 

ISAAC  N.  PHILLIPS, 
Chairman  R.  R.  and  W.  Commission. 
Adopted  January  3,  1893. 


— 14  O 


BEFORE  THE 


Railroad  and  Warehouse  Commission 


STATE  OF  ILLINOIS. 


THE  MADISON,  ILLINOIS  &  ST.  Louis  RAILWAY  Co., 

PETITIONER. 


VS. 

THE  WABASH  RAILROAD  Co.,  THE  CLEVELAND,  CINCINNATI,  CHICAGO 

&  ST.  Louis  RAILWAY  Co.,  THE  CHICAGO  & 

ALTON  RAILROAD  Co., 

RESPONDENTS. 


Petition  No.  11. — For  Leave  to  Cross  near  Kinder. 


APPEARANCES: 

For  Petitioner — J.  H.  Overhall. 

For  Wabash  Railroad  Co.— GEORGE  B.  BURNETT. 

For  Cleveland,  Cincinnatti,  Chicago  &  St.  Louis  Railway  Co.— JAS. 
A.  CONNELLY. 

For  Chicago  &  Alton  Railroad  Co.—  WM.  BROWN. 


213 


OPINION  OF  THE  COMMISSION. 


OPINION   BY   PHILLIPS,  CHAIRMAN: 

Petitioner  seeks  to  cross  with  its  tracks,  the  tracks  of  the  Wabash, 
the  "Big  Four,"  and  the  Chicago  &  Alton  Railroads,  near  Kinder, 
Madison  county,  Illinois.  The  respondent  companies  are  all  object- 
ing to  the  proposed  crossing.  Hence  this  petition  for  an  order  of 
the  Commission  granting  leave  to  cross. 

The  crossing  is  objecteted  to,  among  other  things,  upon  the  ground 
that  there  is  no  public  necessity  for  the  building  of  petitioner's  road 
across  the  tracks  of  respondents  at  the  point  proposed;  that  from  all 
that  appears  the  road  will  terminate  on  a  prairie  where  there  are  no 
inhabitants;  that  the  industries  and  factories  which  petitioner  alleges 
it  is  seeking  to  reach  upon  the  west  are  merely  projected,  and  no  one 
knows  whether  they  will  ever  be  built. 

It  is  further  objected  that  the  only  object  of  petitioner  in  forcing 
this  crossing  is  to  connect  with  what  is  known  as  the  "Bluff  Line" 
just  beyond  the  point  of  crossing. 

It  is  further  contended  that  in  case  petitioner  is  permitted  to  cross 
at  all,  an  overhead  crossing  should  be  ordered  in  order  to  avoid  the 
danger  and  delay  to  travel  and  transportation  which  the  statute  di- 
rects shall  not  be  "unnecessarily"  interfered  with. 

Finally  it  is  said,  in  case  petitioner  is  permitted  to  cross  at  grade 
as  prayed,  it  should  bear  all  the  expense  of  protecting  the  crossing, 
including  the  expense  of  operating  the  interlocker. 

Upon  these  several  points  of  objection  we  observe: 

1.  That  the  Railroad  Commissioners  of  Illinois  are  not  made  by 
law  judges  of  the  necessity  for  building  railroads.  The  General  As- 
sembly, in  the  act  for  the  incorporation  of  railroads,  has  fixed  all  the 
conditions  and  limitations  which  exist  on  this  subject.  Neither  this 
tribunal  nor  any  other  has  been  designated  by  law  to  judge  of  the 
traffic  necessity  of  new  lines.  Some  states,  we  believe,  have  put  re- 
strictions upon  the  building  of  railroads;  but  ours  has  not.  Charters 
are  taken  out  fixing  the  termini  of  the  line  to  be  built;  and  consider- 
able latitude  is  allowed  to  the  constructing  company  in  locating  its 
line  between  these  points.  Existing  lines  have  in  some  cases  been 
almost  parallelled  by  useless  and  speculative  lines  of  road;  but  there 
has  been  and  is  no  legal  authority,  so  far  as  we  know,  to  prevent  this, 
however  much  good  business  judgment  may  be  violated. 


214 

2.  The  same  may  be  said  of  the  objection  that  the  sole  object  of 
petitioner  is  to  meet  the  "Bluff  Line,"  and  give  that  company  traffic 
arrangements  for  crossing  the  tracks  of  respondents.     If  this  objec- 
tion were  sustained  it  would  go  to  the  rigl  t  of  petitioner  to  build  the 
road,  and  not  merely  to  the  particular  place  where  it  is  seeking  to 
locate  its  line.     We  are  not  aware  that  a  connection  with  the  "Bluff 
Line:'  is  an  illegal  object,  or  that  the  Commissioners  of  Railroads 
have  any  power  to  examine  into  the  motives  of  petitioner  and  to 
deny  its  petition  upon  the  ground  that  its  object  is  not  deemed  to  be 
justifiable.     The  Commissioners  are  simply  directed  by  the  statute, 
aftei  hearing,  to  "prescribe  the  place  where  and  the  manner  in  which 
such  crossing  shall  be  made."     If  the  company  has  complied  with 
the  necessary  statutory  provisions   to  enable  it  to  build  a  railroad, 
we,  as  Railroad  Commissioners,  are  not   authorized  to  deny  that  a 
crossing  of  some  kind  may  be  made  of  the  tracks  across  which  it  pro- 
jects its  line.     In  other  words,  we  are  to  "prescribe"  a  crossing,  not 
deny  one  altogether. 

We  have  said  no  power  exists  to  prevent  petition&Pfrom  proceeding 
with  the  construction  of  its  line  upon  the  ground  that  it  meets  no 
public  necessity  and  that  the  objects  and  motives  of  its  projectors 
are  not  proper.  It  is  sufficient,  perhaps,  to  say  that  this  Commission 
can  assume  no  such  power  under  the  statute.  Petitioner,  before  pro- 
ceeding to  cross  the  right  of  way  of  respondents  with  its  road  must, 
in  addition  to  getting  leave  of  the  Commission,  proceeed  to  condemn 
its  right  of  way  in  the  County  Court.  If  any  power  exists  in  that 
court  to  check  the  building  of  this  line  upon  the  grounds  urged,  re- 
spondents can  there  interpose  their  objections,  and  that  tribunal  will 
judge  of  its  own  jurisdiction  and  powers. 

3.  The  objection  based  upon  the  danger  to  travel  and  transporta- 
tion upon  respondents'  lines,  which  will  result  from  the  proposed 
crossing,  raises  the  question  whether,  with  such  crossing,  well  pro- 
tected by  interlocking,  will  entail  an  "unnecessary"  danger  and  de- 
lay within  the  meaning  of  the  statute.     It  is  the  judgment  of  the 
Commissioners  that  every  crossing,  however  well  protected  by  inter- 
locking, introduces  some  elements  of  danger  and  of  delay  to  travel 
and  transportation.     The  language  of  the  statute  is  that  future  cross- 
ings shall  be  constructed  "at  such  place  and  in  such  manner  as  will 
not  unnecessarily  impede-or  endanger  the  travel  or  transportion  upon 
the  railway  so  crossed." 

We  once  had  occasion  to  observe  in  the  case  of  the  Chicago, 
Madison  &  Northern  R.  R.  Co.  vs.  The  Belt.  Railway  Company  of 
Chicago,  that  the  word  "unnecessary"  is  not  used  in  this  statute  in 
its  strict  philosophical  sense.  In  that  sense,  only  that  is  "necessary" 
which  can  not  possibly  be  avoided,  and  there  would  always  be  a  pos- 
sibility of  changing  the  place  and  manner  of  a  crossing  in  order  to 
avoid  even  the  slightest  danger  or  delay.  The  General  Assembly 
evidently  expected  that  some  crossings  would  still  be  made  at  grade. 
Grade  crossings  were  not  positively  prohibited,  but  a  means  was  pro- 
vided by  which,  when  the  configuration  of  the  ground  proved  favor- 
able, crossings  might  be  ordered  to  be  constructed  over  or  under.  It 
was  doubtless  intended  that  reasonable  regard  should  be  had  to  the 


215 

circumstances  of  each  case.  The  question  here,  therefore,  is  not 
whether  there  will  be  some  danger  and  some  delay,  but  will  this 
crossing  "unnecessarily"  impede  or  endanger  travel  or  transportation 
within  the  sense  intended  by  the  General  Assembly?  Recognizing; 
fully  the  desirability  of  separating  crossing  tracks  where  that  is  feas- 
ible, we  do  not  think  a  fair  application  of  this  statute  justifies  us  in. 
ordering  an  overhead  crossing  in  the  present  case.  We  have  caused 
an  estimate  to  be  made  of  the  expense  of  such  a  crossing,  which  i& 
about  $77,000.  Such  a  burden,  the  railway  companies  of  this  State 
have  only  in  rare  instances  voluntarily  imposed  upon  themselves  in 
the  past  for  the  sake  of  avoiding  danger  and  delay,  even  though 
when  their  lines  were  built,  no  such  safety  appliances  were  used  or 
existed  as  those  which  may  now  be  put  in  at  this  crossing. 

Putting  expense  aside,  however,  as  not  to  be  weighed  against  dan- 
ger to  life  and  property,  a  further  difficulty  still  exists.  Petitioner 
states  one  of  its  objects  to  be  to  connect  its  line  with  the  three  re- 
spondent railways,  particularly  the  "Big  Four,"  which  is  the  middle 
track  of  the  three,  they  all  lying  parallel  and  near  together  at  the 
point  designated,  the  Wabash  being  upon  the  east,  the  "Big  Four"  in 
the  middle  and  the  Alton  upon  the  west  The  act  for  the  incorpora- 
tion of  railway  companies  provides  that  every  corporation  formed 
under  the  act  shall  have  power: 

"To  cross,  intersect,  join,  and  unite  its  railways  with  any  other  railway  be- 
fore constructed,  at  any  point  in  its  route,  and  upon  the  grounds  of  such 
other  railway  company,  with  the  necessary  turnouts,  sidings  and  switches,  and 
other  conveniences  in  furtherance  of  the  objects  of  its  connection;  and  every 
corporation  whose  railway  is  or  shall  be  hereafter  intersected  by  any  new 
railway  shall  unite  with  the  corporation  owning  such  fiew  railway  in  forming- 
such  intersection  and  connection,  and  grant  the  facilities  aforesaid;  and  if  the 
two  corporations  can  not  agree  upon  the  amount  of  compensation  to  be  made 
therefor,  or  the  points  and  manner  of  such  crossings  and  connection,  the 
same  shall  be  ascertained  and  determined  in  manner  prescribed  by  law."  2 
Starr  &  Curtis,  page  1914,  Par.  6. 

In  order  to  "intersect,  join  and  unite''  its  tracks  with  the  tracks  of 
respondents,  as  it  seems  petitioner  has  a  right  to  do  under  the  above 
provision,  petitioner  would  be  compelled  to  build  an  additional  track 
upon  a  level  with  the  tracks  crossed.  But  the  same  difficulty  we  now 
have  would  then  again  present  itself;  for  petitioner  could  not  connect 
with  the  "Big  Four"  from  the  east  without  crossing  the  Wabash ;  and  it 
could  not  connect  with  the  Alton  without  crossing  both  the  Wabash 
and  the  "Big  Four."  Thus  if  petitioner  were  to  insist  upon  its  right 
to  connect  with  these  roads, we  should  have  practically  a  grade  cross- 
ing at  last;  and  although  such  a  crossing,  made  for  the  purpos  of  de- 
livering and  receiving  cars,  would  perhaps  be  less  used  than  a  regu- 
lar grade  crossing,  it  would,  nevertheless,  in  the  judgment  of  the 
Commission,  be  such  a  crossing  as  would  require  protection  by  inter- 
locking. Thus  we  see  an  order  for  an  overhead  crossing  would 
probably  tend  very  little  to  simplify  the  situation.  We  have  there- 
fore determined  that  we  can  not  deny  the  prayer  of  the  petition. 
While  interlocking  machines  do  not  entirely  avoid  danger  and  delay 
at  crossings,  they  do  have  the  effect  of  reducing  these  to  a  minimum. 


216 

With  such  an  equipment  we  are  not  able  to  say  in  the  language  of 
the  statute  that  a  grade  crossing  here  would  "unnecessarily  impede 
and  endanger  travel  and  transportation." 

4.  The  question  of  the  division  of  the  expense  of  operating  an  inter- 
locker  remains  to  be  considered.  Petitioner  concedes  that  the  statute 
casts  upon  it  the  burden  of  paying  the  first  cost  of  the  interlocking 
appliance,  of  putting  the  same  in  ready  for  use,  and  of  maintaining 
the  same  in  good  repair.  Respondents  contend  that  to  this  should 
be  added  the  burden  of  also  operating  the  machine.  Upon  this  ques- 
tion the  Commissioners  have  fully  expressed  their  views  in  the 
opinion  in  the  case  of  the  Tamaroa  &  Mt.  Vernon  Ry.  Co.  v.  The 
Louisville  &  Nashville  R.  R.  Co.,  decided  June  21,  1892.  We  have 
seen  no  reason  to  change  the  views  we  there  expressed.  Under  the 
construction  given  to  the  statute  in  that  case  the  expense  of  the 
operation  of  this  interlocker,  i.  e.,  wages  of  operators,  would  be  paid 
for  upon  the  basis  of  the  number  of  roads  using  the  machine,  each 
paying  equally. 

In  accordance  with  the  views  here  expressed  an  order  will  be  en- 
tered granting  petitioner  the  right  to  cross  at  grade  at  the  point 
designated  in  the  petition  The  order  will  provide  that  the  crossing 
shall  be  protected  by  an  inlocker  of  improved  modern  pattern,  upon 
the  construction  and  details  of  which  the  companies  will  be  left  to 
agree  if  they  are  able  to  do  so.  The  order  will  provide  that  the  first 
cost  of  such  interlocker,  the  expense  of  putting  the  same  in,  and  the 
expense  of  maintaining  the  same  in  good  order  and  repair  shall  oe 
paid  entire  by  the  petitioner;  and  that  the  cost  of  operating  the  said 
machine  shall  be  paid  by  petitioner  and  the  three  respondents  equally, 
one-fourth  each. 

ORDER. 

It  is  ordered  and  decided  that  petitioner,  the  Madison,  Illinois  & 
St.  Louis  Railway  Co.,  have  leave  to  cross  with  its  tracks,  at  grade, 
the  tracks  of  the  respondents,  the  Wabash  Railroad  Co.,  the  Cleve- 
land, Cincinnati,  Chicago  &  St.  Louis  Railway  Co.,  and  the  Chicago 
&  Alton  Railroad  Co.,  at  the  place  and  in  the  manner  specified  in  the 
petition  on  file  in  this  cause,  right  of  way  for  such  crossing  being 
first  obtained  under  the  laws  of  Illinois  relating  to  Eminent  Domain. 

It  is  ordered  further,  that  the  crossing  of  tracks  to  be  thus  formed 
be  protected  by  a  system  of  interlocking  signals  and  switches  to  be 
agreed  upon  by  the  parties,  with  this  Commission's  approval,  if  the 
parties  are  able  to  agree,  the  first  cost  of  such  interlocking  machine, 
the  expense  of  putting  the  same  in,  and  the  expense  of  maintaining 
the  same  in  good  order  and  repair  to  be  paid  for  by  the  Madison, 
Illinois  &  St.  Louis  Railway  Co.  as  provided  by  statute;  but  it  is 
hereby  ordered  and  decided  by  the  Commission  that  of  the  cost  of 
the  operation  of  such  interlocking  device,  the  said  Madison,  Illinois 
&  St.  Louis  Railway  Co.,  petitioner,  shall  pay  one-fourth,  and  the 


217 

said  Wabash  Railroad  Co.,  Cleveland,  Cincinnati,  Chicago  &  St. 
Louis  Railway  Co.,  and  Chicago  &  Alton  Railroad  Co.,  respondents, 
shall  pay  one-fourth  each.  And  inasmuch  as  the  statute  only  directs 
the  Railroad  and  Warehouse  Commission  to  prescribe  by  order  a 
plan  of  the  interlocking  in  case  the  parties  are  unable  to  agree; 
therefore,  it  is  ordered  that  this  petition  be  further  held  under  con- 
sideration by  the  Commission  pending  the  efforts  of  petitioner  and 
respondents  to  agree  upon  a  plan  of  interlocking. 
Adopted  January  3,  1893. 


BEFORE  THE 


Railroad  and  Warehouse  Commission 


OF   THE 


STATE  OF  ILLINOIS. 


THE  CHICAGO  &  EASTERN  ILLINOIS  RAILROAD  Co.r 

PETITIONER. 


VS. 


TOLEDO  PEORIA  &  WESTERN  RAILWAY  Co., 

RESPONDENT. 


Petition  No.  13. — For  Protection  of  Crossing  at  Watseka- 


APPEARANCES: 

For  Petitioner— W.  H.  LYFORD. 
For  Respondent— W.  S.  HORTON. 


221 


OPINION  OF  THE  COMMISSION. 


BY  PHILIPS,  CHAIRMAN : 

The  grade  crossing  at  Watseka,  111.,  which  the  petition  prays  may 
be  protected  by  an  iiiterlocker,  is  not  more  dangerous,  perhaps,  than 
many  other  such  crossings  in  this  State.  We  can  not,  however,  agree 
with  the  allegation  in  respondent's  answer,  "that  said  crossing  is  safe 
to  life  and  property,  and  does  not  require  the  protection  prayed  for 
in  the  petition."  We  do  not  believe  any  grade  crossing  of  main  tracks 
can  be  perfectly  safe  to  life  and  property.  We  think  all  such  cross- 
ings should  be  protected  as  rapidly  as  due  regard  to  revenues, 
and  to  all  other  kindred  precautions  looking  to  the  public  safety  will 
permit.  Everything  can  not  be  done  at  once,  however;  and  it  was  not 
the  intention  of  the  lawmakers,  in  passing  the  act  of  1891,  to  compel 
all  crossings  to  be  forthwith  interlocked.  Had  this  been  their  object, 
they  would  have  so  provided. 

The  counsel  of  petitioner  stated  upon  the  hearing  that  the  petition- 
ing company  would  be  willing,  rather  than  that  the  protection  of  this 
crossing  should  entirely  fail,  to  pay  two- thirds  of  the  cost  of  the  con- 
struction of  the  device.  The  disparity  in  the  volume  and  importance  of 
the  traffic  on  these  roads,  while  not  admited  to  be  a  controlling  con- 
sideration in  such  cases,  is  deemed  a  sufficient  reason  on  which  to 
take  petitioner  at  its  own  offer.  The  respondent  road  is  a  property 
which,  under  its  present  excellent  and  efficient  management,  is  con- 
stantly improving,  and  rapidly  retrieving  the  misfortunes  of  the  com- 
pany's earlier  period.  We  think,  under  all  the  circumstances,  the  pe- 
titioner can  well  afford  to  pay  two-thirds  of  the  cost  of  an  interlocker 
at  this  crossing.  The  expense  of  the  maintenance  and  operation  of 
of  the  machine  will,  however,  be  equally  divided  between  the  two 
companies. 

The  Secretary  will  enter  an  order  directing  that  the  crossing  de- 
scribed in  the  petition  be  interlocked,  and  providing  that  of  the  first 
cost  of  the  device  and  of  putting  the  same  in  ready  for  use  petitioner 
pay  two- thirds  and  respondent  one-third,  and  that  of  the  cost  of 
maintaining  such  device  in  good  order  and  repair,  and  of  operating 
the  same,  each  of  the  companies  pay  one-half.  The  order  will  pro- 
vide that  the  case  be  further  held  while  petitioner  and  respondent 
agree  upon  the  details  of  an  interlocking  device,  as  provided  by 
statute,  if  they  are  able  to  do  so. 


222 

FINAL   ORDER   OF   COMMISSION. 

CHICAGO,  January  4,  1893. 

At  a  session  of  the  Railroad  and  Warehouse  Commission  of 
the  State  of  Illinois,  held  in  Chicago,  Illinois,  on  this  day; 
present — Isaac  N.  Phillips  and  J.  C.  Willis,  Commissioners,  and  J. 
H.  Paddock,  Secretary — the  following  proceedings  were  had  in  this 
cause: 

And  now  this  petition  having  come  on  for  final  hearing  and  deter- 
mination before  the  Commission  this  4th  day  of  January,  1893, 
and  the  Commission  having  considered  the  evidence  taken  herein, 
and  the  arguments  made  before  the  Commission  at  a  former  session, 
and  being  fully  advised  in  the  premises,  doth  find: 

That  the  public  good  requires  that  the  crossing  formed  at  Wat- 
seka,  Illinois,  by  the  tracks  of  the  Chicago  and  Eastern  Illinois  Rail- 
road Company  and  the  Toledo,  Peoria  &  Western  Railway  Company, 
be  protected  and  operated  by  an  interlocking  device  or  machine,  and 
that  the  following  would  be  a  just  and  equitable  basis  on  which  to 
apportion  the  cost  of  such  device  or  machine,  to- wit. :  That  the  said 
petitioner,  the  Chicago  &  Eastern  Illinois  Railroad  Company  pay 
two-thirds,  and  the  said  respondent,  the  Toledo,  Peoria  &  Western 
Railway  Company,  pay  one-third  of  the  first  cost  and  of  putting 
the  same  in  ready  for  use,  and  of  the  cost  of  maintaining  such  de- 
vice in  good  order  and  repair  and  of  operating  the  same,  the  said  pe- 
titioner, the  Chicago  &  Eastern  Illinois  Railroad  Company,  pay  one- 
half,  and  the  said  respondent,  the  Toledo,  Peoria  &  Western  Rail- 
way Company  pay  one-half. 

It  is  therefore  ordered  by  the  Commission  that  said  crossing  be 
protected  by  a  system  of  interlocking  and  signals,  to  be  agreed  upon 
by  the  companies,  with  this  Commission's  approval,  if  the  companies 
are  able  to  agree,  and  that  said  companies  shall  bear  the  proportion 
of  the  first  cost  of  putting  in  the  device  and  of  maintaining  and  oper- 
ating the  same  as  above  set  forth. 

And  it  is  further  ordered  that  this  petition  be  further  held  under 
consideration  by  the  Commission,  pending  efforts  of  petitioner  and 
respondent  to  agree  upon  a  plan  of  interlocking. 

Adopted  January  4,  1893. 


nsro 


MISCELLANEOUS  CORRESPONDENCE 


COVERING  THE  QUESTIONS  OF   SCHUDLES, 
FURNISHING  CARS,  TERMINAL  FACILI- 
TIES, INTERLOCKING,  ETC. 


J.  H.  PADDOCK, 

Secretary. 


ISAAC  N.  PHILLIPS, 
JOHN  R.  WHEELER, 
J.  C.  WILLIS, 

Commissioners . 


225 


CORRESPONDENCE  CONCERNING  SCHEDULES  AND 
RATES  OF  THE  L.  E.  &  W.  R.  R.  CO.,  AND  REFER- 
RING  TO  CERTAIN  PROSECUTIONS  FOR  DISCRIM- 
INATIONS. 


LETTER  OF  ISAAC  N.  PHILLIPS  TO  GEORGE  L.  BRADBURY. 

BLOOMINGTON,  111.,  May  13,  1892. 

0 

George  L.  Bradbury,  Esq.,  General  Manager  L.  E.  &  W.  R.  R., 
Indianapolis,  Ind. 

DEAR  SIR: — I  am  advised  that  copies  of  a  jobber's  special  tariff 
have  been  sent  by  the  freight  department  of  your  company  to  the 
wholesale  men  of  Bloomington,  superseding  the  tariff  formerly  in 
force  on  your  road.  I  have  just  applied  to  your  station  office  for  a 
copy  of  this  new  tariff,  but  none  was  furnished  me.  I  understand 
the  effect  of  this  tariff  is  to  considerably  raise  rates  to  Bloomington 
jobbers,  bringing  them  up,  so  it  is  said,  to  the  maximum  schedule 
adopted  by  the  Railroad  and  Warehouse  Commission. 

I  was  informed  some  days  ago  that  some  member  or  members  of 
your  freight  department  had  been  in  Bloomington,  and  had  taken 
occasion  while  here  to  intimate  to  the  jobbers  of  this  city,  that  un- 
less a  certain  suit  now  pending  for  discrimination  here  should  be 
withdrawn,  your  company  would  raise  the  rates  to  the  limit  allowed 
by  the  Commissioner's  tariff,  and  thereby  place  Bloomington  job- 
bers in  a  considerably  worse  position  than  they  were  before. 

It  is  not  my  province,  or  desire,  as  a  member  of  the  Railway  and 
Warehouse  Commission,  to  ascribe  motives  to  a  move  of  this  kind; 
but  before  a  measure  is  taken  with  a  view  to  punishing  Bloomington 
jobbers  because  the  Railway  Commissioners  have  thought  fit  to  en- 
force the  statute  against  discrimination,  I  think  it  not  improper  to 
call  your  attention  briefly  to  the  provisions  of  the  law  regulating 
railroads  in  this  State,  and  to  the  practice  of  the  Railroad  Commis- 
sion under  the  same. 

Section  8  of  the  act  concerning  extortion  and  unjust  discrimina- 
tion in  force  July  1,  1878,  provides  (and  the  same  phraseology  is 
preserved  in  later  amendments  of  the  act) ,  that 

— 15  O. 


226 

"The  Railroad  and  Warehouse  Commissioners  are  hereby  directed 
to  make  for  each  of  the  railroad  corporations  doing  business  in  this 
State,  as  soon  as  practicable,  a  schedule  of  reasonable  maximum  rates 
of  charges  for  the  transportation  of  passengers  and  freights  and  cars 
on  each  of  said  railroads,"  etc. 

The  method  pursued  by  the  Commission  for  a  long  time  was  to 
make  a  schedule  for  each  road  doing  business  in  the  State;  but,  un- 
der the  further  provision  of  the  statute,  which  allowed  the  Commis- 
sion to  classify  the  roads,  various  classifications  were  made,  until 
finally  the  Illinois  roads  were  all  placed  in  two  large  classes  as  at 
present,  known  as  class  "A,"  and  class  "B." 

It  has  never  been  the  object  of  the  Commission  to  press  maximums 
down  to  so  low  a  point  as  to  leave  the  roads  no  room  to  adjust  their 
rates  to  the  exigencies  of  their  business.  It  has  been  recognized 
that  competition  must  sometimes  be  met,  and  so  long  as  in  meeting 
it  the  railroad  violated  no  law  against  discrimination,  its  right  to 
protect  itself  was  not  interferred  with.  The  harmony  which  has 
generally  come  to  prevail  between  the  Railway  Commission  and  the 
roads  of  Illinois,  and  between  the  roads  and  the,  shippers  of  the  State, 
has,  I  assure  you,  been  quite  agreeable  to  the  Commission. 

It  is,  however,  apparent  that  should  the  roads  conclude  to  treat 
this  schedule  of  maximum  rates  as  one  to  be  put  in  force  by  them  in 
all  cases,  not  treating  it  as  a  maximum  only,  a  very  serious  revision 
of  the  schedules  would  at  once  become  necessary. 

It  has  been  a  practice  with  the  freight  officers  of  many  railroads 
(and  I  may  add,  a  very  unjustifiable  practice),  whenever  shippers 
complain  of  treatment  they  deem  to  be  unjust,  to  show  to  them  the 
Railroad  Commissioners'  schedule,  and  to  point  out  to  them  how 
much  worse  they  might  fare  should  the  railroads  see  fit  to  put  that 
schedule  in  force. 

Since  I  began  this  letter,  a  gentlemen  of  this  city  has  shown  me  a 
letter  of  one  of  your  agents  in  which  your  agent  says,  in  response  to 
a  complaint  concerning  what  was  deemed  an  extortionate  charge: 

"Referring  to  correspondence,  and  expense  bills  attached,  I  don't 
see  how  there  is  any  remedy  for  this.  Stations  in  Illinois  take  Illi- 
nois State  rates,  and  it  is  governed  by  Illinois  classification,  and  it 
seems  to  be  a  very  high  rate.  Take  goods  from  Cincinnati:  I  ex- 
pect they  will  come  nearly  as  cheap  as  from  Bloomington,  as  that 
business  is  governed  by  the  official  classification,  and  it  being  an  in- 
ter-state affair  brings  it  down  to  a  comparatively  small  rate." 

I  leave  you  to  judge  how  long  the  Railway  Board  of  Illinois  is 
likely  to  leave  in  force  a  maximum  rate  which  your  own  officers  and 
agents  see  fit  to  point  to  as  exhorbitantly  high,  seeking  to  place  the 
responsibility  upon  the  Railway  Commission.  You  will  have  only 
yourselves  to  blame  if  the  maximum  rates  fixed  by  the  Commission 
for  your  company  shall  cease  to  serve  as  bugaboos  to  scare  the  pa- 
trons of  your  company  into  acquiescence  in  whatever  practices  you 
may  see  fit  to  adopt.  . 


227 

Though  I  have  not  examined  your  tariff,  I  judge  from  accounts  re- 
ceived of  it  that  it  seriously  raises  the  rates  to  Bloomington  shippers 
above  what  had  long  been  in  force,  fixed  voluntarily  by  your  freight 
department.  If  this  proves  to  be  the  case  it  will  become  necessary 
for  the  Railway  Commission  to  at  once  make  a  special  schedule  of 
maximum  rates  for  your  company  as  contemplated  by  the  section  of 
the  statute  above  quoted.  If  our  maximums  are  to  be  taken  as  ac- 
tual working  rates,  then  you  can  easily  see  that  the  Commission  must 
be  guided  by  different  principles,  in  adjusting  the  schedule,  from 
those  which  were  permitted  to  have  force  in  adjusting  what  was 
meant  only  for  a  maximum  schedule. 

This  matter  will  be  considered  at  an  early  meeting  of  the  Railway 
Board,  of  which  I  will  direct  the  secretary  to  give  you  notice,  so  you 
may  be  present  and  be  heard  if  you  see  fit  to  do  so. 

Very  truly  yours, 
(Signed)  ISAAC  N.  PHILLIPS, 

Chairman  R.  R.  and  W.  Commission. 

LETTER  OF  SINGER  &  WHEELER  TO  W.  W.  MARMON. 

PEORIA,  ILL.,  MAY  13,  1892. 
W.   W.  Marmon,  Esq.,  Bloomington,  Illinois. 

DEAR  SIR: — We  have  been  in  correspondence  with  H.  C  Parker, 
traffic  manager  of  the  Lake  Erie  &  Western  Railroad.  As  you  have 
no  doubt  noticed,  the  road  has  raised  the  rates  about  fifty  per  cent 
on  the  strength  of  the  Bloomington  people  suing  the  road  under  the 
Illinois  law,  as  we  understand  it,  on  account  of  a  mistaken  idea  that 
the  Lake  Erie  &  Western  road  was  giving  special  rates  not  enjoyed 
by  your  people.  About  three  years  ago,  you  will  recollect,  what  high 
rates  there  were  in  this  State,  and  our  jobbers  undertook  the  task 
and  went  before  the  Railroad  and  Warehouse  Commission  five  or  six 
times  and  finally  compelled  the  Illinois  railroads  to  reduce  their  tariff' 
to  the  same  basis  as  the  inter-state  tariff  was.  Indianapolis  and  Chi- 
cago could  ship  goods  into  Bloomington  cheaper  than  Peoria  could, 
and  the  same  arrangement  will  be  in  force  now,  since  they  have  raised 
the  rate.  The  writer  can  not  see  why  your  jobbers  should  have 
brought  suit  against  the  two  roads  running  to  Bloomington  without 
first  positively  ascertaining  whether  there  was  any  special  tariff  else- 
where or  not.  We  do  not  think  that  Bloomington  has  gained  any- 
thing by  this  action.  It  has  simply  made  their  own  rate  higher  as 
well  as  ours,  but  probably  with  the  temper  of  the  management  of  the 
Lake  Erie  and  the  "Big  4"  on  this  subject,  nothing  can  now  be  done 
in  the  matter.  I  feel  that  it  certainly  was  a  short-sighted  policy  of 
the  business  men  of  Bloomington. 

Yours  truly, 

SINGER  &  WHEELER 
(P.  J.  Singer. 


228 

LETTER  OF  ISSAAG  N.  PHILLIPS  TO  SINGER  &  WHEELER. 

BLOOMINGTON,  ILL.,  May  14,  1892. 

Messrs.  Singer  &  Wheeler,  Peoria,  Illinois. 

GENTLEMEN: — Mr.W.W.  Marmon,  of  this  city,  has  shown  me  a  let- 
ter written  by  your  firm  to  him,  of  date  May  ISth,  wherein  you  say, 
"We  have  been  in  correspondence  with  H.  C.  Parker,  traffic  manager 
of  the  L.  E.  &  W.  R.  R."  You  further  say,  "You  have  no  doubt 
noticed  the  road  has  raised  the  rates  about  50  per  cent,  on  the 
strength  of  the  Bloomington  people  suing  the  road  under  the  Illinois 
law,  on  account  of  a  mistaken  idea  that  the  L.  E.  &  W.  road  was 
giving  special  rates  not  enjoyed  by  your  people." 

You  further,  in  your  letter,  speak  of  the  "short-sighted  policy  of 
the  business  men  of  Bloomington,"  in  bringing  this  calamity  upon 
themselves,  and  say  that  "with  the  temper  of  the  management  of  the 
L.  E.  &  W.  and  the  "Big  4"  on  this  subject,  nothing  can  now  be  done 
in  the  matter." 

My  attention,  as  a  member  of  the  Railroad  and  Warehouse  Com- 
mission, had  previously  been  called  to  the  fact  that  the  rates  had 
had  been  raised  by  the  L.  E.  &  W.  Company,  and  I  had  little  doubt 
it  was  as  you  say,  a  matter  of  "temper"  with  them,  and  done  as  a  re- 
taliation on  account  of  the  action,  not  of  the  "busines  men  of  Bloom- 
ington," but  of  the  Railroad  and  Warehouse  Commission.  I  infer 
that  it  is  a  matter  of  "temper"  on  their  part,  for  the  reason  that  if 
the  notion  that  they  were  discriminating  were  a  "mistaken  idea,"  as 
you  seem  to  imply,  they  could,  of  course,  have  defeated  the  suit  upon 
the  merits.  Hence,  I  infer  that  it  was  because  it  was  not  a  "mis- 
taken idea"  that  they  have  resorted  to  this  questionable  practice  for 
the  purpose  of  gaining  an  advantage  in  the  suit  to  which  you  refer. 

My  purpose  in  writing  you  is,  as  chairman  of  the  Railroad  and 
Warehouse  Commission,  to  ask  you  to  preserve  this  "correspondence 
.with  H.  C.  Parker,"  to  which  you  refer  in  your  letter.  Your  people 
will  be  interested,  along  with  the  people  of  Bloomington,  in  seeing 
that  this  railroad  company  does  not  arbitrarily  and  oppressively  in- 
crease rates,  whatever  their  motives  may  be  in  the  premises.  The 
correspondence  to  which  you  have  referred  is  likely  to  be  needed  by 
the  Railroad  and  Warehouse  Commission  in  certain  investigations 
likely  to  occur  in  the  near  future.  Therefore,  I  desire,  in  behalf  of 
the  Railway  Board,  to  request  you  to  preserve  it  and  be  ready  to  pro- 
duce it  when  it  is  neeeed. 

Yours  very  truly, 

ISAAC  N.  PHILLIPS, 
Chairman  R.  R.  &  W.  Commission. 


229 

GEORGE  L.  BRADBURY  TO  ISAAC  N.  PHILLIPS. 

INDIANAPOLIS,  IND.,  May  16,  1892. 

Mr.  Isaac  N.  Phillips,   Chairman    R.  R.   and    W.  Commission, 
Bloomington,  III. 

MY  DEAR  SIR — I  have  your  favor  of  the  13th  inst.  I  have  been  in 
charge  of  railroad  properties  extending  into  Illinois  since  the  first 
Commission  was  appointed,  and  can  not  recall  a  single  instance 
wherein  I  have  failed  to  accord  to  each  Commission  full  respect  to 
them  and  their  rulings,  and  I  fully  hope  to  be  able  to  continue  do- 
ing so.  Of  course,  I  am  not  advised  why  your  Commission  should 
institute  suit  against  this  company  without  first  making  complaint 
to  us,  or  advising  us  of  some  wrong-doing,  thus  enabling  us  to  desist 
and  make  restitution,  if  proper.  Yet  I  presume  your  reasons  were 
good.  I  desire  to  say  no  representative  of  this  company  had  any  au- 
thority to  intimate  to  the  jobbers  of  Bloomington  any  retaliation  as  re- 
ferred to,  and  I  think  a  wrong  construction  must  have  been  placed  on 
his  words. 

I  am  advised  by  our  traffic  department  that  no  complaints  of  our 
tariffs  from  Bloomington  have  come  to  his  knowledge.  On  the  con- 
trary, this  company  has  been  favored  by  the  jobbers  of  Bloomington 
giving  us  preference  in  their  business  on  account  of  our  favorable 
tariffs,  so  that  we  are  at  a  loss  to  understand  why  the  case  or  suit  has 
been  brought  against  us.  Our  desire  is  to  make  such  just  and  reason- 
tariffs  as  will  enable  all  the  cities  on  our  line  to  reach  out  to  the 
fullest  extent  in  business,  as  against  other  cities  located  on  other 
lines,  either  state  or  inter-state;  as  for  instance,  we  desire  to  have 
Peoria  and  Bloomington  compete  in  our  territory  with  Chicago  and 
LaFayette  and  St.  Louis,  so  far  as  we  can  without  violating  the 
spirit  of  your  laws  or  doing  any  one  an  injustice ;  and  this  we  were  do- 
ing, or  endeavoring  to  do,  and  .still  desire  to  do.  We  had  no  inten- 
tion whatever  to  violate  your  laws  or  do  violence  to  the  people  of 
Bloomington,  and  we  still  have  none,  and  this  was  the  reason  our 
traffic  manager  visited  them,  that  he  might  ascertain  wherein  the 
trouble  existed.  I  assume  your  Commission  will  not  press  any  suit 
against  us,  unless  you  find  intentional  wrong-doing,  with  refusal  on 
our  part  to  correct. 

If  you  will  indicate  a  time  when  it  will  be  convenient  for  yourself 
or  the  full  Commission  to  meet  with  us,  I  will  be  glad  to  conform  to 
it,  and  I  doubt  not  all  questions  can  be  harmonized. 

Very  truly, 

GEO.  L.  BRADBURY, 

General  Manager. 


230 
ISAAC  N.  PHILLIPS  TO  GEO.  L.  BRADBURY. 

BLOOMINGTON,  ILL.,  May  19,  1892. 

Mr.  Geo.  L.  Bradbury,  Gen.  Man.  L.  E.  &  W.  E.  R.  Co.,  Indian- 
apolis, Ind. 

DEAR  SIR — I  have  your  letter  of  16th  inst.,  and  have  endeavored 
to  note  and  digest  its  contents. 

Among  other  things  you  say,  you  are  not  advised  why  the  Com- 
mission should  institute  suit  against  your  company  without  formal 
complaint.  It  is  true  that  no  formal  complaint  in  writing  was  lodged 
with  the  Commission  against  your  company  for  discrimination. 
Shippers  often  apprehend  they  may  be  greatly  annoyed  if  they  in- 
cur the  enmity  of  railroad  managements,  and  while  they  may  be  very 
profuse  in  secret  complaints  to  officials,  do  not  wish  to  go  upon 
record  for  fear  their  business  may  be  injured  or  destroyed  by  the 
action  of  earners.  I  can  assure  you  there  has  been  no  dearth  of 
complaints  that  your  company  has  long  been  discriminating  against 
Bloomington,  in  territory  which  naturally  belongs  to  Bloomington 
jobbers. 

In  this  connection,  please  note  that  the  Railroad  and  Warehouse 
Commission  does  not  sit  as  a  court  to  try  questions  of  discrimina- 
tion. The  only  function  of  the  Commission  in  such  cases  is  that  of 
a  public  prosecutor,  and  I  am  not  aware  there  is  any  obligation, 
moral  or  legal,  to  carry  the  evidence  obtained  to  the  offending  com- 
pany and  exhibit  it  before  bringing  suit.  It  is  true,  when  a  formal 
complaint  is  lodged,  notice  is  sometimes  given  to  the  company,  and 
even  a  hearing  had  with  a  view  to  determining  whether  there  is- 
sufficient  grounds  for  a  prosecution.  But  when  the  Commissioners 
receive  from  any  source  such  information  as  satisfies  them  the  law 
has  been  violated,  their  duty  is  very  plain  under  the  statute.  They 
are  expressly  commanded  to  prosecute  in  all  such  cases. 

It  seems  pertinent  to  observe  here,  that  if  the  Commission  has 
instituted  a  prosecution  under  a  misapprehension  of  the  facts,  or 
upon  insufficient  evidence,  there  is  no  surer  way  or  better  place  to 
make  the  fact  apparent  than  in  the  defense  and  at  the  trial.  Retal- 
iatory measures  would  certainly  be  unnecessary  where  there  is  a 
legitimate  defense. 

You  further  say  that  no  representative  of  your  company  had  any 
authority  to  intimate  to  the  jobbers  of  Bloomington  any  retaliation, 
etc.  What  authority  your  agents  have,  I,  of  course,  do  not  know. 
The  fact  is  very  well  established  that  the  intimation  was  conveyed. 
It  seems  useless,  however,  in  the  light  of  developments,  to  discuss 
the  question  whether  retaliation  was  merely  threatened  or  not.  The 
actual  retaliation  itself,  which  has  now  come  in  the  form  of  your 
special  tariff,  is  a  better  evidence  of  the  fact  than  any  mere  threats; 
and  this,  by  the  way,  may  serve  to  illustrate  why  the  suit  in  question 
was  brought  without  any  formal  complaint  having  been  filed  by 
shippers  before  the  Railroad  Commission.  Where  there  is  such 


231 

liability  to  punishment,  it  does  not  seem  wonderful  that  shippers 
should  be  timid  and  expect  others  to  take  the  responsibility  for 
prosecutions. 

I  call  your  attention  to  the  fact  that  my  former  letter  discussed 
entirely  the  matter  of  your  special  tariff,  in  which  I  am  advised  you 
raise  rates  to  Bloomington  jobbers  to  the  extent  of  simply  put- 
ting in  force  as  your  tariff  the  Commissioners'  schedule  of  maximum 
rates.  Upon  this  subject,  to  my  surprise,  your  letter  is  silent;  and 
I  have  not  yet  been  able  to  obtain  a  copy  of  the  tariff  in  question, 
though,  as  I  stated  before,  I  applied  to  your  office  here  for  it  and 
was  told  it  would  be  sent  to  me. 

I  now  refer  you  to  my  former  letter,  as  embodying  my  views  on 
the  subject  of  this  special  tariff,  and  the  action  which  its  enforce- 
ment seems  to  make  necessary;  and  I  have  to  say  further,  that, 
while  that  tariff  remains  in  force,  there  will,  in  my  judgment,  be  no 
occasion  for  the  meeting  you  suggest  with  a  view  to  "harmonizing" 
interests.  I  am  in  favor  of  peace,  harmony,  and  good  will  all  around, 
and  have  no  wish  for  a  contest,  unless  one  is  necessary.  But,  so  far 
as  I  am  personally  concerned,  I  am  not  in  the  habit  of  acting  under 
the  influence  of  coercive  measures,  and  shall  not  do  so  in  this  case. 

Very  truly  yours, 

(Signed)  ISAAC  N.  PHILLIPS, 
Chairman  R.  R.  and  W.  Commision. 

GEORGE  L.  BBADBUBY  TO  ISAAC  N.  PHILLIPS. 

INDIANAPOLIS,  IND.,  May  20,  1892. 

Mr.  Isaac  N.  Phillips,  Chairman  JR.  R,.  &  W.  Commission,  Bloom- 
ington, III. 

MY  DEAR  SIB — I  have  your  favor  of  19th  inst.  It  is  true,  as  you 
say,  there  is  no  obligation  on  the  part  of  your  Commission  to  give  us 
notice  of  complaint,  or  a  hearing,  to  determine  whether  there  is  suf- 
ficient ground  for  prosecution,  but  I  have  always  understood  your 
Commission  generally  adopted  such  measures,  and  it  was  the  excep- 
tion when  you  instituted  suit  before  giving  the  parties  complained 
of  an  opportunity  to  correct  the  wrong-doing,  especially  if  the  parties 
were  innocent  in  intent.  I  have  said  to  you,  our  purpose  was  to 
comply  with  your  rulings  and  we  had  not  knowingly,  and  do  not  de- 
sire to  discriminate  against  Bloomington  jobbers.  It  is  true,  the 
courts  can  determine  whether  we  have  violated  the  laws  or  not  in 
the  suit  you  have  brought,  but  if.  as  I  assume  to  be  the  case,  your 
purpose  is  to  correct  the  wrong-doing  and  afford  quick  relief,  I  sub- 
mit, we  being  innocent  offenders,  if  at  all,  would  it  not  accomplish 
the  purpose  of  your  Commission  to  give  us  a  hearing  and  an  oppor- 
tunity without  reverting  to  the  courts?  It  is  true,  we  have  put  in 
force  the  Commissioners'  schedule  of  rates,  which  is  an  in'-rease  over 
our  former  tariff,  but  it  is  the  same  to  all,  and  there  certainly  is  no 
discrimination,  which  is  the  thing  complained  of,  and  not  the  rates. 
We  have  no  desire  to  work  any  hardship  or  retaliation  to  any  person 


232 

or  community;  we  had  a  tariff  in  force  which  we  thought  and  in- 
tended to  be  in  the  best  interest  of  all  parties;  our  first  notice  to  the 
contrary  is  your  suit,  and  pending  that  or  a  settlement,  we  simply 
adopt  the  Commissioners'  schedule. 

It  would  be  very  absurd  for  me  to  think  of  attempting  coercive 
measures  with  your  Commission,  and  I  beg  to  assure  you  I  had  no 
such  intent,  notwithstanding  all  you  may  have  heard  to  the  contrary. 
I  am  candid  in  the  desire  to  be  in  harmony  with  your  Commission, 
and  with  our  patrons,  and  to  do  what  is  fair  and  right  in  the  adjust- 
ing of  our  tariffs,  to  comply  with  the  law,  and  to  avoid  all  discrimin- 
ations, and  now  submit  with  this  statement,  can  you  not  reconsider 
your  conclusions  and  name  an  early  day  for  a  meeting  when  the  mat- 
ters complained  of  can  be  heard  from  on  both  sides  and  harmonized? 
If  we  fail,  all  your  present  resources  are  still  with  you.  I  enclose 
our  schedule. 

Yours  truly, 

GEO.  L.  BRADBURY, 

General  Manager. 

GEORGE  L.  BRADBURY  TO  ISAAC  N.  PHILLIPS. 

INDIANAPOLIS,  IND.,  June  2,  1892. 

Mr.  Isaac  N.  Phillips,  Chairman  R.  R.  &  W.  Commission,  Bloom- 
ington,  III. 

MY  DEAR  SIR — Referring  to  my  letter  of  May  20,  will  you  not 
kindly  gire  me  an  answer  at  your  early  convenience? 

Very  truly, 

GEO.  L.  BRADBURY, 
General  Manager. 

ISAAC  N.  PHILLIPS  TO  GEORGE  L.  BRADBURY. 

BLOOMINGTON,  ILL.,  June  6,  1892. 

George  L.  Bradbury,  Esq.,  General  Manager,  L.  E.  &  W.  R.  R., 
Indianapolis,  Ind. 

DEAR  SIR — I  have  your  letter  of  June  2,  in  which  you  ask  me  to 
give  you  an  answer  to  yours  of  May  20. 

The  case  is  just  this:  The  Railway  Board,  on  the  advice  of  the 
Attorney  General,  authorized  a  prosecution  against  your  company 
for  charging  in  one  case  more,  and  in  another  case  the  same,  for  a 
longer  than  for  a  shorter  distance  on  the  same  class  of  goods,  in  the 
same  direction.  In  a  short  time  the  jobbers  of  Bloomington  were 
threatened  that  unless  they  had  this  suit  dismissed  their  freights 
would  be  increased.  I  know  positively  from  two  sources  that  such 
threats  were  made,  but  am  not  at  liberty  to  state  my  evidence. 
Thereupon  freights  were  largely  increased  to  Bloomington  merchants; 
and  having  resorted  to  this  retaliatory  measure,  your  company  now 
proposes  a  meeting  with  the  Commission  to  "harmonize"  matters. 


233 

I  am  quite  willing  to  believe  that  you  did  not  personally  devise  a 
scheme  of  this  kind,  and  that  it  was  begun  without  your  knowledge. 
I  have  information  which  points  to  the  fact  that  the  "bulldozing" 
policy  had  a  strong  abettor  here  in  Bloomington.  I  think  a  man  of 
your  ability  and  experience  would  have  known  that  this  was  a  very 
poor  way  of  "harmonizing"  matters;  and  that  a  public  official  having 
any  considerable  spirit  or  self  respect  would  not  submit  to  even  con- 
sider the  question  of  compromise  with  the  sword  of  Damocles  sus- 
pended over  his  head. 

The  Railway  Board  meets  in  Springfield  tomorrow,  and  will  be  in 
session  there  perhaps  till  Wednesday  night.  It  is  then  expected  we 
will  adjourn  to  Chicago  and  hold  a  hearing  there  in  which  the  Chi- 
cago &  Northwestern  Railroad  is  concerned.  During  this  meeting  I 
shall  bring  this  question  before  the  Board,  of  which  I  am  only  one 
member,  and  shall  propose  to  the  Board  the  making  of  a  schedule  of 
maximum  rates  for  your  road  in  pursuance  of  the  statute  quoted  to 
you  in  a  former  letter. 

Since  getting  your  last  letter,  I  have  learned  from  the  jobbers  here 
that  shipments  are  now  actually  being  made  and  charged  for  at  the 
rates  named  in  your  new  tariff.  That  is  to  say,  I  have  learned  that 
you  have  actually  put  in  as  working  rates  from  Bloomington  to  Illi- 
nois points  the  schedule  of  maximum  rates  established  by  the  Rail- 
road and  Warehouse  Commission.  This,  as  I  indicated  before, 
renders  it  necessary,  in  my  judgment,  that  these  maximum  rates,  so 
far  as  your  road  is  concerned,  should  be  revised  with  the  object  in 
view  of  the  maximum  being  used  as  working  rates.  With  a  view  to 
this,  I  have  been  collecting  data  with  reference  to  your  very  much 
lower  charges  for  like  distances  from  Indiana  points  into  this  State, 
by  means  of  which  you  are  giving  jobbers  outside  of  Illinois  an  ad- 
vantage over  those  at  Peoria  and  Bloomington.  It  seems  if  you  are 
not  permitted  to  specially  favor  Peoria  you  are  determined  to  "boy- 
cott" the  whole  State.  This  will,  of  course,  bear  upon  the  question 
of  what  constitutes  reasonable  rates.  I  do  not  think  it  can  be  shown 
that  because  goods  in  transitu  cross  a  state  line,  the  road  is  entitled 
in  reason  and  justice  to  make  the  freight  cheaper  than  upon  goods 
which  are  transported  wholly  within  the  state. 

If  my  colleagues  agree  with  me  upon  the  necessity  of  this  action, 
I  will  say  that  after  our  schedule  is  completed,  if  you  desire  to  be 
heard  upon  the  question  as  to  whether  it  is  a  reasonable  and  proper 
schedule,  an  apportunity  will  be  given  you  to  appear  before  the  Com- 
mission in  person  or  by  such  representative  as  you  may  desire. 

I  see  no  need  for  any  other  or  different  consultation  than  this  in 
the  present  aspect  of  affairs  touching  this  prosecution. 

Very  truly  yours, 

(Signed) ,  ISAAC  N.  PHILLIPS, 

Chairman  R.  R.  and  W.  Commission. 


234 

GEORGE  L.  BRADBURY  TO  ISAAC  N.  PHILLIPS. 

INDIANAPOLIS,  IND.,  June  7,  1892. 

Mr.  Isaac  N.  Phillips,  Chairman  R.  R.  &  W.  Commission,  Spring- 
field, Illinois. 

DEAR  SIR: — I  have  your  favor  of  the  6th  inst.  I  am  unable,  as 
yet,  to  ascertain  the  real  cause  for  the  suit.  The  case  seems  to  have 
been  worked  up  against  us,  and  I  regard  it  as  purely  technical.  If 
there  has  been  any  abettor  at  Bloomington  I  am  certainly  not  aware 
of  it.  I  find  a  difference  between  the  Commission  and  ourselves, 
and  ask  simply  for  a  hearing,  which  you  do  not  seem  disposed  to 
grant  me.  Our  traffic  department  is  now,  and  has  been  for  some 
time,  engaged  upon  a  tariff  that  will  comply  with  the  clause  of  the 
law  which  we  are  now  sued  upon.  I  say,  unhesitatingly,  if  the  rail- 
roads of  Illinois  would  undertake  to  comply  with  that  clause  literally, 
you  would  hear  of  more  complaints  than  any  commission  has  ever 
yet  encountered.  We  find  it  almost  impossible  to  work  up  a  tariff 
under  it  except,  perhaps,  by  using  one-hundredths  of  a  cent.  I  de- 
sired to  explain  all  this  to  you,  and  to  show  you  the  difficulties  under 
which  we  labor,  which  I  could  do  so  much  better  verbally  than  by 
letter.  As  an  illustration,  permit  me  to  say,  we  a  short  time  since 
desired  to  put  a  commodity  from  Sandusky,  Ohio,  into  East  St.  Louis, 
via  Bloomington  and  the  C.  &  A.,  when  we  found  the  C.  &  A.  rates 
from  Bloomington  were  higher  than  the  rate  we  had  to  make  from 
Sandusky.  As  soon  as  we  can  harmonize  a  tariff  for  Illinois  we  shall 
put  it  into  effect.  Should  your  Commission  decide  at  any  time  to 
give  me  a  hearing,  I  will  be  glad  to  attend.  I  have  never  known  of 
a  case  before  where  either  a  state  or  inter-state  Commission  declined 
to  give  a  hearing  to  a  road  complained  of,  or  when  a  suit  was  brought 
without  first  giving  the  road  an  opportunity  to  correct  a  technical 
violation,  if  any,  and  yet  I  assume  your  only  purpose  is  to  do  your 
duty.  Whatever  schedule  your  Commission  may  adopt  we  will  ex- 
pect to  carry  out  in  good  faith ;  in  fact,  a  suggestion  would  be  com- 
plied with  the  same  as  your  order.  I  feel  that  I  have  offered  to  do- 
my  whole  duty  in  this  matter,  and  in  a  proper  spirit. 

Very  truly, 

GEO.  L.  BRADBURY, 
General  Manager. 

GEO.  L.  BRADBURY  TO  ISAAC  N.  PHILLIPS. 

INDIANAPOLIS,  IND.,  June  10,  1892. 

Mr.  Isaac  N.  Phillips,  Chairman  R.  R.  &  W.  Commission,  Bloom- 
ington, III. 

DEARSiR: — Our  traffic  department  have  prepared  a  tariff  on  freights 
for  Illinois  points  which  is  a  material  reduction  from  Commissioners' 
rates,  and  I  have  ordered  it  into  effect,  hoping  it  may  prove  very  sat- 
isfactory. I  think  I  could  readily  convince  you  of  the  inconsistency 
of  the  claim  under  which  the  suit  against  us  is  brought. 


235 

The  Commissioners'  tariff  applied  to  this  road  violates  the  section 
Under  it  the  rates  Peoria  to  Garlock,  thirty  miles,  and  to  Congerville,. 
twenty-six  miles,  are  the  same.  Again,  from  Bloomington  to  Rankin 
and  Kirks,  one  being  sixty  and  the  other  fifty-six  miles,  the  rates  are 
the  same;  and  many  other  points  are  similar.  It  is  now  twenty- one 
years  since  the  act  was  promulgated,  and  this  question  has  never  be- 
fore been  raised  to  my  knowledge.  There  is  not  a  railroad  in  the 
country  that  has  not  adopted  the  blocking  system  for  making  rates, 
and  that  system  has  received  the  approval  of  the  Inter-state  and  all 
State  Commissions  so  far  as  I  know;  in  fact,  it  is  difficult  to  see  how 
any  other  could  be  used  without  causing  great  distress  and  discrim- 
ination. I  think  you  will  admit  this  when  you  come  to  go  into  the 
question  more  fully.  The  Commissioners'  tariff  made  upon  a  mileage 
grade  alone  can  not  be  used  except  for  short  distance;  nor  can  a 
tariff  be  made  on  that  scale  alone  that  would  not  work  a  hardship  to 
either  the  railroads  or  people. 

This  company  desires  to  be  in  harmony  with  its  patrons  and  with 
the  laws.  I  am  of  the  opinion,  however,  that  no  one  not  in  the  posi- 
tion to  encounter  them  can  truly  judge  of  the  many  difficulties  under 
which  we  labor  in  meeting  the  varied  questions  arising. 

Yours  truly, 

GEO.  L.  BRADBURY, 

General  Manager. 

ISAAC  N.  PHILLIPS  TO  GEORGE  L.  BRADBURY. 

BLOOMINGTON,  ILL.,  June  11,  1892, 

Mr.  George  L.  Bradbury,  General  Manager  L.  E.  &  W.  It.  R.  Co., 
Indianapolis,  Ind. 

DEAR  SIR: — I  have  your  two  letters  written  since  my  last.  In  the 
one  received  this  morning  you  say  you  have  ordered  in  a  modified 
tariff  for  Illinois.  I  have  not  time  just  now  to  reply  to  you  as  fully 
as  I  wish.  I  assure  you  I  do  not  mean  to  be  unreasonable  with  your 
road,  or  any  other.  I  am  aware  that,  as  a  practical  railroad  man, 
you  know  a  great  deal  more  about  railroad  business  and  freight  tariffs 
than  I  do.  As  a  member  of  the  Railway  Commission,  I  have  gener- 
ally acted  on  the  supposition  that  railroad  men  know  their  own  busi- 
ness better  than  I  do.  I  intend,  so  far  as  I  am  able,  to  perform  the 
public  functions  I  am  appointed  to  perform;  and  I  intend  to  perform 
them  without  any  captious  or  oppressive  measures  against  railroads. 
I  have  tried  not  in  any  case  to  be  controlled  by  public  clamor.  I  be- 
lieve that  the  way  to  have  good  railroad  service  is  to  have  the  rail- 
roads of  the  country  prosperous;  and  I  further  believe  that  their  be- 
ing prosperous  is  not  incompatible  with  the  interests  of  the  people,, 
but  subserves  those  interests. 

I  am  glad  you  have  under  consideration  a  different  freight  tariff 
from  the  one  now  in  use,  and  I  hope  all  efforts  of  your  agents  to  ma<e 
capital  for  your  company  out  of  the  exceedingly  lenient  maximum 
rates  of  the  Railway  Commission  will  at  once  cease.  It  is  the  very 


236 

last  thing  you  can  afford  to  seek  a  popular  advantage  from.  I  fur- 
ther hope  the  schedule  you  are  about  to  put  in  will  prove  of  such  a 
•character  that  it  will  render  the  contemplated  action  of  the  Railway 
Commission  unnecessary. 

I  have  further  to  say,  if  you  have  views  you  wish  to  place  before 
the  Commission  upon  the  general  subject  of  freight  rates,  and  wish 
a  conference  for  that  purpose,  as  I  now  understand  from  your  last 
letters,  you  will  be  heard  early  and  as  fully  as  you  may  desire.  I  un- 
derstood the  conference  you  asked  for  referred  particularly  to  the 
suit  now  pending  at  Bloomington;  and,  concerning  that  particular 
matter,  I  did  not  care,  in  view  of  facts  fully  stated  by  me  before, 
to  have  any  conference.  I  assure  you,  as  a  member  of  the  Railway 
Board,  I  have  no  disposition  to  reject  light  or  counsel  from  any 
proper  source,  and  certainly  not  from  those  far  more  experienced 
and  much  wiser  than  I  am  concerning  railway  freight  matters. 

I  mean  you  to  understand  from  this  letter,  that  if  you  approach 
this  subject  in  what  I  conceive  to  be  the  proper  spirit,  I  will  meet 
you  half  way,  and  you  will  not,  I  think,  find  me  unfair  or  unreason- 
able in  the  treatment  of  your  company. 

I  speak,  of  course,  only  for  myself,  but  have  no  doubt  what  I  here 
say  will  be  approved  by  my  colleagues. 

Very  truly  yours, 

ISAAC  N.  PHILLIPS, 
Chairman  R.  R.  &  W.  Commission. 


TRAIN  SERVICE— CORRESPONDENCE  CONCERNING  THE 
STOPPING  OF  CERTAIN  TRAINS  AT  MT.  FOREST  AND 
WILLOW  SPRINGS,  HAD  UPON  THE  LETTER  AND 
PETITION  OF  S.  T.  HART,  VILLAGE  CLERK  OF  SPRING 
FOREST. 

LETTER  OF  C.  H.  CHAPPELL  TO  J.  H.  PADDOCK. 

CHICAGO,  ILL.,  September  14,  1892. 

J.  H.  Paddock,  Esq.,  Secretary  Railroad  and  Warehouse  Commis- 
sion, Springfield,  Illinois. 

DI-AR  SIR: — I  am  in  receipt  of  your  communication  of  Sept.  13, 
giving  copy  of  letter  from  S.  T.  Hart,  Village  Clerk  of  Spring  For- 
est, and  in  reply  beg  to  say :  The  stations  of  Mt.  Forest  and  Willow 
Springs  are  about  half  a  mile  apart,  and  we  have  for  the  last  two  or 
three  years  declined  to  stop  all  of  our  trains  at  both  stations. 

Going  north,  train  No.  7,  passing  Willow  Springs  and  Mount  For- 
est about  7:00  a.  m.  makes  both  stops;  train  No.  9,  passing  about 
9:00  a.  m.  stops  only  at  Willow  Springs;  train  No.  5.  about  12:30 
noon  stops  at  both  stations;  train  No.  1,  about  6:30  in  the  evening 
makes  both  stops. 


237 

.  Going  south,  train  No.  2,  about  10:00  a.  m.  makes  both  stops; 
train  No.  6,  at  1:45  p.  m.  makes  both  stops;  train  No.  10,  at  5:45  in 
the  evening,  stops  only  at  Mount  Forest. 

We  think  these  ample  accommodations  and  more  than  we  should 
really  be  called  upon  to  furnish.  One  stop  should  answer  for  all  the 
business  in  that  vicinity. 

Yours  very  truly, 

C.  H.  CHAPPELL, 
General  Manager. 

LETTER  OP  J.  H.  PADDOCK  TO  S.  T.  HART. 

November  11,  1892. 

8.  T.  Hart,  Esq.,  Village  Clerk  Spring  Forest,  III. 

DEAR  SIR: — I  have  placed  your  communication  of  November  4tb 
before  the  Commission  at  its  meeting  today,  and,  after  considering 
the  same,  the  Commission  direct  me  to  say: 

1.  The  enforcement  of  the  ordinances  of  your  village  against  the- 
high  speed  of  trains  is  a  question  with  which  the  Railroad  and  Ware- 
house Commission  has  nothing  to  do,  that  being  a  matter  for  the 
consideration  of  your  village  officials. 

2.  Neither  has  this  Commission  anything  to  do  with  the  fact  of 
your  being  carried  by  your  station  on  one  or  more  occasions,  when 
you  rode  upon  Chicago  &  Alton  trains. 

3.  There  is  no  rule  of  law  which  compels  a  railroad  to  stop  it& 
trains  at  any  certain  station,  simply  because  it  has  formerly  done  so. 

4.  The  measure  of  duty  of  a  railroad  company  is  to  give  a  reason- 
able  train   service   to   its   patrons   under    all    circumstances.     The 
Supreme  Court  of  Illinois  has  held  that  a  contract  made  by  a  rail- 
road company  to  maintain  a  station  at  a  certain  point  is  not  binding 
upon  the  company,  it  being  a  matter  of  public  policy,  and  that  policy 
requiring  every  company  to  furnish  a   reasonable   accommodation 
to  all  its  patrons;  and,  that  what  is  a  reasonable  accommodation  is 
not  to  be  controlled  by  a  contract  of  the  company.     Even  though  a 
company  agreed  to  furnish  a  station  at  a  certain  point,  yet  if  the 
necessities  of  the  public  required  the  stop  to  be  made  at  another 
place  rather  than  the  one  covered  by  the  contract,  it  would  be  the 
duty  of  the  company,  notwithstanding  its  contract,  to  change  the 
stopping  place.     This  is  the  substance  of  the  law  as  declared  by  the 
Supreme  Court  of  this  State. 

M.  <k  O.  R.  R.  Co.  vs.  People,  132  111.,  559. 

5.  Upon  consideration  of  the  whole  case,  the  Commission  are  of 
opinion  that  the  present  train  service  furnished  by  the  Chicago  & 
Alton  R.   R.  Co.  at  the  two  stations  in  question  ( Mt.  Forest  and 
Willow  Springs),  is  a  reasonable  service;  that  any  suit  to  enforce  a 
different  service   would  probably   fail.     They  therefore   order   that 
your  complaint  be  dismissed. 


238 

This  letter  embodies  the  opinion  of  the  Commission  upon  your  ap- 
plication, having  been  dictated  by  the  Chairman  of  the  Board,  with 
the  concurrence  of  his  associates. 

Very  respectfully, 

(Signed)     J.  H.  PADDOCK, 

Secretary. 

LETTER  OF  ISAAC  N.  PHILLIPS  TO  H.  A.  FISHER,  CONCERNING  THE 

SWITCHING  OF  CARS. 

BLOOMINGTON,  ILL.,  Jan.  19,  1893. 

MR.  H.  A.  FISHER,  General  Manager  St.  L.,  A.  &  S.   R.  E.  Co., 
Alton,  III. 

DEAR  SIR — In  closing  up  the  business  of  the  present  Board  of 
Railway  Commissioners,  I  find  in  a  pigeon-hole  your  letter  of  Au- 
gust 10,  1892,  which  I  greatly  fear  has  never  received  an  answer. 
Wishing  to  leave  as  little  unfinished  business  as  possible  to  our  suc- 
cessors, and  recognizing  the  importance  of  the  question,  I  now  an- 
swer your  letter.  Since  in  the  long  time  that  has  elapsed  you  may 
have  forgotten  the  precise  point  of  inquiry,  I  here  quote  your  letter 
in  full: 

"I  have  read  with  interest  your  pamphlet  No.  19,  containing  the  Attorney 
General's  opinion  in  regard  to  switching  cars  of  competing  lines  at  common 
points,  but  the  C.  &  A.  has  sprung  a  new  feature  on  me.  They  now  take 
the  position  that  they  are  not  compelled  to  switch  our  cars,  either  loaded  or 
empty,  to  and  from  their  'wagon  loading  tracks.'  Tracks  on  which  no  per- 
manent industries  are  located,  but  which  are  used  for  public  or  miscellaneous 
loading  and  unloading.  How  is  it?" 

In  answer  to  this,  I  have  to  say,  that  in  my  judgment  the  position 
taken  by  the  C.  &  A.  management  does  not  conflict  with  the  spirit, 
and  I  think  not  with  the  letter,  of  the  Attorney  General's  ruling;  nor 
does  it  violate  the  law  as  I  understand  it.  I  think  there  is  a  clear 
distinction  between  the  case  of  a  permanent  "industry"  located  upon 
a  line  of  road,  having  its  own  switch  tracks  for  the  loading  and  un- 
loading of  cars,  and  a  company's  team  track  which  it  has  built  to 
accommodate  its  own  patrons.  Each  railroad  company  doing  busi- 
ness in  any  city  or  town  is  under  obligation  to  furnish  its  patrons 
with  reasonable  terminal  facilities,  which  would  include  tracks  for 
loading  and  unloading  by  wagons  and  the  like.  If  cars  are  shipped 
to  any  city  or  town  on  one  road,  I  do  not  think  it  reasonable,  merely 
because  the  merchandise  track  of  another  company  in  such  town  or 
city  happens  to  be  more  convenient  to  the  consignee  of  the  cars,  that 
he  should  require  the  company  over  whose  line  his  merchandise  was 
not  hauled  to  furnish  its  terminal  facilities  for  his  use.  Nor  do  I 
think  it  a  reasonable  proposition  that  the  railroad  which  has  the  haul 
should  require  some  other  road  to  furnish  terminals,  team  tracks, 
etc.,  for  the  use  of  its  patrons  or  of  itself. 

The  case  is  somewhat  different  where  a  permanent  industry  is  lo- 
cated upon  a  line  of  road.  Such  industry  usually  has  its  own  track. 
In  such  case  I  do  not  believe  that  the  managers  of  the  road  on  which 


239 

ihe  industry  is  located  can  compel  the  owners  of  such  industry  or 
factory  to  patronize  only  their  own  road;  which  would  in  effect  be 
the  case  if  they  could  decline  to  switch  cars  coming  over  other  lines 
of  road  to  such  industry  or  factory.  Nor  do  I  think  the  managers  of 
the  road  on  which  such  industry  is  located  could  refuse  to  take  its 
cars  and  deliver  them  at  junction  points  to  other  lines  of  road.  To 
compel  a  company  to  switch  cars  under  such  circumstances  is  not 
compelling  them  to  furnish  terminal  facilities  for  the  use  of  other 
companies. 

In  the  case  put  in  your  letter,  it  would  simply  be  making  one  com- 
pany furnish  its  merchandise  tracks  to  the  patrons  of  another  road, 
which  I  do  not  think  the  law  requires. 

Apologizing  for  the  great  delay  in  answering  your  letter,  I  remain, 

Very  truly  yours, 

ISAAC  N.  PHILLIPS, 
Chairman  R.  R.  &  W.  Commission. 

LETTER  OF  ISAAC  N.  PHILLIPS  TO  WILLIAM  GODDARD,  RELATING  TO 
THE  DUTY  OF  FURNISHING  CARS. 

BLOOMINGTON,  ILL,,  January  19,  1893. 
Mr.  William  Goddard,  Supt.  Perry  Co. Coal  Mining  Co.,  Duquoin,  III. 

MY  DEAR  SIR — In  closing  up  the  business  of  the  present  Railway 
Board,  preparatory  to  going  out  of  office,  I  find  a  letter  from  you  of 
October  7,  1892,  which  I  fear  has  not  been  answered.  I  will  there- 
fore now  answer  your  questions  in  their  order  to  the  best  of  my 
understanding  of  the  law. 

You  ask,  first,  whether  you  have  any  legal  recourse  against  a  rail- 
road company,  on  whose  line  you  are  located,  if  it  fails  to  furnish 
cars,  or  furnishes  only  a  part  of  what  are  ordered.  In  answer  I  will 
say,  that  a  railroad  company  is  bound  to  use  reasonable  diligence 
and  foresight  to  supply  the  wants  of  its  customers  in  the  matter  of 
cars.  Such  company  is  bound  to  keep  on  hand  and  to  furnish  cars 
to  meet  all  the  ordinary  wants  of  its  customers.  Such  demand  for 
cars  as  it  may  reasonably  foresee,  it  is  under  a  legal  obligation  to 
supply.  If  exceptional  circumstances  arise,  and  there  is  an  unusual 
and  unexpected  demand  for  cars,  at  some  particular  time,  owing  to  a 
rush  of  traffic,  then  the  railroad  company  would  not  be  held  respon- 
sible for  a  failure  to  do  that  which  its  managers  could  not  reasonably 
expect  would  be  required  of  it.  Such  is  the  legal  duty  of  a  railroad 
company  in  the  matter  of  furnishing  cars,  as  I  understand  it. 

Your  second  inquiry  is,  whether  a  railroad  company  has  a  right  to 
furnish  its  cars  to  mines  not  located  on!its  road  in  preference  to  mines 
that  are  so  located.  In  answer  I  will  say,  I  do  not  think  it  would 
be  a  reasonable  exercise  of  its  rights,  or  a  legal  compliance  with  its 
duty,  for  a  company  to  send  its  cars  off  of  its  line  for  use  elsewhere 
before  the  reasonable  demands  of  the  patrons  along  its  own  line  had 
been  supplied. 

Your  next  inquiry  is,  whether,  in  case  cars  are  so  furnished  by  a 
company  to  industries  located  off  its  line,  to  the  denial  of  the  rights  of 


240 

customers  on  the  line,  that  circumstance  would  afford  a  rightful 
claim  for  damage.  Certainly  if  a  railroad  company,  for  any  reason, 
fails  to  supply  cars  to  patrons  on  its  own  line,  when  it  is  reasonably 
within  is  power  to  do  so,  such  company  would  be  liable  in  damages 
for  the  failure.  I  think  if  a  railroad  company  should  send  its  cars 
away  when  its  managers  knew  they  were  needed  at  home,  or  when, 
by  the  exercise  of  reasonable  judgment,  they  would  have  so  known, 
such  fact  would  be  ground  for  an  action  for  such  damages  as  the 
patron  could  prove  he  had  suffered  from  the  failure  to  furnish  cars 
to  the  extent  they  could  have  been  furnished  had  not  the  cars  been 
thus  needlessly  sent  away. 

Your  next  inquiry  is,  whether  or  not  your  company,  being  located 
on  the  Illinois  Central,  two  miles  distant  from  the  junction  of  that 
road  with  the  "Cairo  Short  Line,"  could  lawfully  demand  cars  from 
the  C.  S.  L.  when  you  are  not  connected  with  its  track  except  by 
way  of  the  Illinois  Central.  In  answer  to  this  I  would  say,  I  do 
not  think  you  could  in  any  event  compel  the  Cairo  Short  Line  to 
send  its  cars  to  you.  I  think  a  railroad  company  has  a  right  to  keep 
its  cars  on  its  own  track  if  it  sees  fit  to  do  so.  Roads  do  interchange 
cars  as  a  matter  of  convenience,  and  it  is  almost  imperative  that  they 
should  do  this  in  order  to  transact  the  business  of  the  country.  I 
understand  it  is  the  duty  of  a  company,  when  another  road  hauls  a 
loaded  car  to  the  point  of  junction  with  such  company,  and  delivers  it 
to  be  hauled  further,  to  take  the  car  and  haul  it  to  its  destination,  or 
so  far  on  the  way  as  its  track  extends.  In  such  case,  the  loaded  car 
would  be  tendered  to  it  at  its  own  track,  and  there  would  be  a  legal 
obligation  on  the  company  to  haul  the  car.  But  I  do  not  think  that 
a  company  having  its  business  located  on  another  line  of  road  at  a 
distance  could  demand  cars  from  any  road  except  the  one  on  which 
it  is  located.  Of  course,  if  that  road,  by  arrangement  with  other 
roads,  gets  cars  of  other  companies  for  its  patrons,  as  very  often 
happens  in  practice,  that  would  be  another  matter;  but  I  do  not 
think  the  distant  company  could  be  legally  compelled  to  furnish  its 
cars  to  industries  on  the  tracks  of  other  companies. 

I  have  thus  answered,  I  hope,  specifically  your  questions,  and  trust 
my  answers  will  be  understood,  and  not  misunderstood.  The  statute 
and  the  common  law  alike  make  it  incumbent  upon  the  managers 
of  railroads  to  use  all  reasonable  diligence  and  foresight  to  supply 
their  patrons  with  cars  for  shipping  purposes.  It  does  not  require 
them  to  foresee  extraordinary  demands  and  provide  for  them.  Con- 
sequently, when  traffic  suddenly  becomes  unexpectedly  heavy,  there 
is  often  a  "car  famine,"  and  patrons  seriously  complain  of  being  un- 
able to  get  cars.  In  many  such  cases  that  I  have  been  cognizant  of, 
there  was  no  liability  on  the  part  of  the  company  for  the  failure;  be- 
cause the  company  had  supplied  themselves  with  enough  cars  for 
ordinary  demands,  and  were  not  bound  to  constantly  be  ready  for 
unforeseen  exigencies. 

Very  truly  yours, 

(Signed)         ISAAC  N.  PHILLIPS, 
Chairman  B.  R.  and  W.  Commission. 


241 

THE  INTERLOCKING  ACT.— LETTER  CONCERNING  THE 

PROTECTION  OF  CROSSINGS  ON  THE  L.  E. 

&  W.  RAILWAY. 

BLOOMINGTON,  ILL.,  May  14,  1892. 

Mr.  George  L.  Bradbury,  Gen.  Manager  L.  E.  &  W.  R.  R.t  Indian- 
apolis, Jnd. 

DEAR  SIR — I  call  your  attention  to  the  large  number  of  unpro- 
tected grade  crossings  of  your  company  within  the  limits  of  the  State 
of  Illinois,  and  to  the  further  fact  that  a  statute  was  passed  by  the 
last  General  Assembly  of  Illinois  under  which  these  crossings  can 
now  be  protected  by  a  system  of  signals  and  derails  worked  by  the 
interlocking  system.  (See  Illinois  Session  Laws,  1891,  80  82.) 
Under  this  act  you  will  observe  that  you  can,  if  you  desire,  proceed 
on  your  own  motion  by  petition  to  properly  interlock  your  crossings; 
or  in  case  this  is  not  done,  the  Railway  Commission  is  empowered 
to  take  the  initiative,  and,  after  hearing,  order  proper  interlocking, 
apportioning  cost  and  expense  of  operation  and  maintenance  accord- 
ing to  what  they  deem  the  justice  of  the  case. 

So  far  as  the  Commission  have  communicated  with  the  railway 
managers  of  the  State,  a  commendable  disposition  has  been  shown  to 
go  forward  under  this  law  and  protect  the  many  dangerons  grade 
crossings  of  the  State  which  are  almost  daily  proving  so  destructive 
to  life  and  property.  All  agree  that  not  only  the  public  interest,  but 
proper  economy  and  good  railway  practice,  require  that  this  work  be 
done  soon,  and  that  the  appliances  used  should  be  of  the  latest  and 
best  make,  and  in  every  way  first-class.  In  this  opinion,  I  am  led 
by  my  knowledge  of  your  reputation  as  an  able  and  progressive  rail- 
way manager,  to  believe  you  will  heartily  concur. 

I  count  on  your  road,  within  Illinois,  nine  grade  crossings  and  one« 
junction  point,  outside  the  city  of  Peoria.  The  C.  &  A.  management 
would,  I  am  quite  sure,  meet  you  in  a  plan  to  suitably  interlock  the 
crossing  of  their  tra<  ks  at  the  Union  depot  in  this  city;  and  I  have 
reason  to  think  the  Illinois  Central  would  not  oppose  the  interlocking 
of  either  of  their  two  tracks  which  you  cross  at  grade  in  this  State. 
Some  companies  prefer  to  have  the  Commission  proceed  without 
petition,  and  we  have  already  done  this  in  several  cases.  I  may  say 
We  are  quite  willing  to  proceed  without  petition  where  the  com- 
panies for  any  cause  do  not  wish  to  take  the  responsibility  of  the  pro- 
ceeding. 

My  attention  has  recently  been  called  quite  pointedly  to  the  fact 
that  freight  engineers  are  in  the  habit  of  disregarding  the  law  which 
requires  full  stops  at  grade  crossings.  I  have,  myself,  recently 
observed  passenger  engineers  do  the  same  thing.  They  prefer  to 
"take  chances"  rather  than  lose  the  time  and  take  the  trouble  re- 
quired to  stop  and  again  get  under  way.  Occasionally  a  train  is  in 
the  way,  and  then,  as  in  the  case  of  the  Jacksonville  disaster,  the 
innocent  public  must  suffer  death  and  maiming,  and  the  company  at 
fault  has  to  pay  enough  in  de  mages  to  more  than  interlock  the 
crossing. 

—16  O 


242 

The  Railway  Commission  of  this  State  will  be  glad  to  have  you 
signify,  at  an  early  day,  what  the  disposition  of  your  management  is 
with  reference  to  the  speedy  interlocking  of  your  grade  crossings. 
The  function  of  the  Railway  Commission  in  the  premises  is,  as  you 
will  see  from  the  act,  to  serve  the  public  interest;  and  it  seems  to  be 
pretty  fully  conceded  by  all  good  railroad  men  that  both  the  public 
welfare  and  good  business  economy  require  that  all  grade  crossings 
be  interlocked. 

Awaiting  your  early  attention  to  this  important  matter,  I  remain, 

Very  truly  yours, 

ISAAC  N.  PHILLIPS, 
Chairman  B.  R.  &  W.  Commission. 


NO. 


BEFORE  THE 


STATE  OF  ILLINOIS. 


COMPLAINT  No.  97. 


J.  C.  SHIRLEY,  Complainant. 


vs. 


CHICAGO  &  NORTHWESTERN  RAILWAY  Co.,  Respondents. 


FAILURE  TO  REDEEM  CODPONS  OF  COMMUTATION  TICKET, 


Filed  July  12,  1892.— Decision  Rendered  January  17, 1893. 


245 


OPINION  OF  THE  COMMISSION. 


BY  PHILLIPS,  CHAIRMAN. 

Shirley  purchased  of  the  Chicago  &  Northwestern  Railway  Co.  a 
"monthly  commutation  ticket,"  good  for  sixty  rides  in  the  month  of 
May  between  Chicago  and  Lakeside,  a  distance  of  eighteen  miles. 
The  ticket  cost  $6  50,  or  at  the  rate  of  10  5-6  cents  per  ride.  Fifty- five 
of  the  sixty  coupons  were  used  in  the  lifetime  of  the  ticket.  Five  re- 
mained unused;  and  these  unused  coupons  were  presented  by  Shirley 
to  the  company  for  redemption  under  the  act  of  1875.  Shirley 
claims  that  fifty-five  cents  should  be  refunded  to  him  as  the  redemp- 
tion value  of  the  ticket.  His  theory  is  that  the  five  coupons  are  re- 
deemable at  their  cost  price.  The  company  refused  to  redeem  the 
five  unused  coupons  at  the  rate  stated,  or  any  other  rate,  claiming 
that  they  were  without  any  redemption  value  under  the  statute. 

The  statute  relied  upon  is  the  act  of  1875,  section  5  of  which 
provides: 

"That  it  shall  be  the  duty  of  the  owner  or  owners  of  railroad  or 
steamboats,  by  their  agents  or  managers,  to  provide  for  the  re- 
demption of  the  whole  or  any  parts  or  coupons  of  any  ticket  or 
tickets  as  they  may  have  sold,  as  the  purchaser  for  any  reason  has 
not  used,  and  does  not  desire  to  use,  at  a  rate  which  shall  be  equal 
to  the  difference  between  the  price  paid  for  the  whole  ticket  and  the 
cost  of  a  ticket  between  the  points  for  which  the  proportion  of  said 
ticket  was  actually  used,"  etc. 

Under  this  ungrammatical  and  clumsy  provision,  was  anything  due 
Mr.  Shirley  from  the  railway  company  upon  the  remaining  five  cou- 
pons of  his  sixty- ride  ticket? 

This  coupon  ticket  was  by  its  terms  not  transferable.  It  could  be 
used  only  by  Shirley  himself,  whose  name  was  written  upon  it.  The 
•courts  hold  the  condition  which  prohibits  the  transfer  of  commuta- 
tion tickets  to  be  reasonable  and  therefore  legally  enforcible. 
Shirley's  ticket  could  then  have  no  general  market  value,  because  a 
third  party  could  use  it  only  by  perpetrating  a  fraud  upon  the  com- 
pany. If  the  ticket  had  any  value,  that  value  is  measurjd  solely  by 
the  statutory  liability  of  the  issuing  company  under  the  section  above 
quoted. 

If  each  coupon  of  a  commutation  ticket  is  redeemable  at  its  cost 
price,  as  contended,  then  it  is  evident  that  any  passenger  can  compel 


246 

the  company  to  carry  him  at  the  lowest  commutation  rate,  whether 
he  rides  much  or  little.  That  is  to  say,  if  the  regular  fare  between 
two  stations  seven  miles  apart  be  twenty  cents,  and  the  company 
puts  on  sale  ten-ride  commutation  tickets  between  these  stations 
at  one  dollar,  or  at  the  rate  of  ten  cents  per  ride,  the  reduction  being 
made  in  consideration  of  ten  rides  being  taken  at  one  purchase,  then 
no  patron  of  the  company  need  pay  more  than  ten  cents  per  ride  be- 
tween these  points;  because  he  can  purchase  a  ten- ride  ticket,  use 
one  coupon  for  a  single  ride,  present  the  remaining  nine  coupons  to- 
the  ticket  agent  at  the  end  of  the  journey  for  redemption,  and  re- 
ceive back  ninety  cents. 

This  merely  illustrates  one  of  the  consequences  of  admitting  the 
contention  of  complainant.  Such  a  consideration,  however,  can  not 
control  the  present  decision.  We  are  to  determine  what  the  section 
of  the  statute  above  quoted  means,  and  its  meaning  must  be  found 
in  the  language  used.  It  is  not  a  question  as  to  what  the  law  ought 
to  provide,  but  what  it  does  in  fact  provide. 

The  statute  says  the  company  shall  "provide  for  the  redemption 
of  the  whole  or  any  parts  or  coupons  of  any  ticket,"  etc.  This  re- 
demption was  to  be  made,  according  to  the  language  of  the  statute, 
"at  a  rate  which  shall  be  equal  to  the  difference  between  the  price 
paid  for  the  whole  ticket  and  the  cost  of  a  ticket  between  the  points- 
for  which  the  proportion  of  said  ticket  was  actually  used." 

Had  the  law-makers  meant  that  coupons  should  be  redeemed  at 
their  cost  price  they  could  have  said  so  in  a  word.  They  did  not  say 
so,  but  said  something  else,  namely,  that  the  difference  between  the 
price  paid  for  the  whole  ticket  and  what  it  would  have  cost  the  pas- 
senger to  have  bought  a  ticket  for  the  riding  actually  done  on  the 
ticket  shall  be  the  redemption  value.  The  language  of  the  section 
is  a  little  awkward  and  a  trifle  muddy,  but  the  above  is  its  clear 
meaning. 

The  question  then  is,  could  Mr.  Shirley  have  ridden  fifty-five 
times  between  Chicago  and  Lakeside  for  less  than  $6.50,  the  cost  of 
the  ticket,  either  by  paying  regular  fares,  or  upon  any  other  style  of 
commutation  ticket  issued  by  the  company?  If  he  could  have  done 
so,  then  he  was  entitled,  under  this  statute,  to  the  difference  between 
what  it  would  have  cost  him  to  ride  fifty- five  times  and  .the  $6.50 
he  paid.  For  instance,  if  the  company  at  the  time  this  ticket  was 
purchased  would  have  sold  Shirley  fifty- five  rides  for  $5.95,  then 
clearly  Shirley  has,  under  the  company's  own  practice,  ridden  but 
the  worth  of  $5.95,  and  is  entitled  under  the  language  of  the  above 
section  to  the  fifty-five  cents  he  claims,  but  not  otherwise. 

It  does  not  appear,  however,  that  the  difference  between  the  price 
paid  and  "the  cost  of  a  ticket  between  the  points  for  which  the  pro- 
portion of  said  ticket  was  actually  used,"  would  in  this  ease  be  any- 
thing. 

We  therefore  hold  that  the  ticket  has  no  redeemable  value  under 
the  statute.  The  complaint  will  be  dismissed. 

Adopted  January  17,  1893. 


No.  27 


OZESIDIEIE^S 


INTERLOCKING    CASES. 


PROTECTION  OF  CROSSING  SOUTH  OF  LITCHFIELD. 

CASE  No.  9. 

WABASH  RAILROAD  Co.  vs.  JACKSONVILLE,  LOUISVILLE  &  ST.  Louis 
RAILWAY  Co.,  CONSOLIDATED  WITH 

CASE  No.  10. 

JACKSONNILLE,   LOUISVILLE   &    ST.   Louis   RAILWAY   Co.  vs.    ST. 
Louis  &  CHICAGO  RAILWAY  Co. 


CASE  No.  11. 
PROTECTION  OF  CROSSING  NORTH  OF  LITCHFIELD. 

WABASH  RAILROAD  Co.  vs.  CHICAGO,   PEORIA  &  ST.    Louis  RAIL- 
WAY Co..  LESSEE  OF  ST.  Louis  &  CHICAGO  RAILROAD. 


249 


BEFORE  THE 

Sailroad  and  Warehouse  Commission 


OP  THE 

STATE  OF  ILLINOIS. 


THE  JACKSONVILLE,  LOUISVILLE  &  ST.  Louis  RY.  Co., 

Petitioner, 

vs. 

THE  ST.  Louis  &  CHICAGO  RAILWAY  Co., 

Respondent. 


CASE  No.  10. — PROTECTION  OP  CROSSING  AT  LITOHPIELD. 


APPEARANCES: 

For  Petitioner,  I.  L.  MORRISON,  General  Solicitor. 
For  Respondent,  FRANK  H.  JONES,  Attorney. 


ORDER  OF  THE  COMMISSION. 


WEDNESDAY,  January  18,  1893. 

At  a  session  of  the  Railroad  and  Warehouse  Commission  of  the 
State  of  Illinois,  held  at  its  office  in  Springfield,  Illinois,  this  day, 
present  Isaac  N.  Phillips  and  J.  C.  Willis,  Commissioners,  the  fol- 
lowing proceedings  were  had  in  this  cause: 

The  Commissioners  being  fully  advised  in  the  premises,  find  that 
it  is  impracticable  to  interlock  the  crossing  described  in  the  petition 
by  a  separate  device,  but  that  the  same,  together  with  the  crossing 
of  the  Wabash  Railroad  and  the  Jacksonville,  Louisville  &  St.  Louis 


250 

Railway,  in  which  latter  crossing  a  petition  has  been  filed  (numbered 
9  upon  the  docket  of  the  Commission),  should  be  interlocked  with  a 
single  system. 

It  is  therefore  ordered  by  the  Commission,  that  this  petition  be, 
and  the  same  is  hereby,  consolidated  with  said  cause  No.  9,  entitled 
"The  Wabash  Railroad  Company  vs.  The  Jacksonville,  Louisville 
&  St.  Louis  Railway  Company,"  and  that  an  order  be  entered  in 
said  latter  cause  covering  both  crossings. 

Adopted  January  18,  1893. 


251 


BEFORE  THE 

Railroad  and  Warehouse  Commission 


OF  THE 

STATE  OF  ILLINOIS. 


THE  WABASH  RAILROAD  Co.,  Petitioner. 

vs. 
THE  JACKSONVILLE,  LOUISVILLE  &  ST.  Louis  RAILWAY  Co., 


Respondent* 


CASE  No.  9. — PROTECTION  OF  CROSSING  AT  LITCHFIELD. 


APPEARANCES: 

For  Petitioner,  GEO.  B.  BURNETT,  Attorney. 

For  Respondent,  I.  L.  MORRISON,  General  Solicitor. 


FINAL  ORDER  OF  THE  COMMISSION. 


WEDNESDAY,  January  18,  1893. 

At  a  session  of  the  Railroad  and  Warehouse  Commission  of  the 
State  of  Illinois,  held  at  its  office  in  Springfield,  Illinois,  this  day,, 
present  Isaac  N.  Phillips  and  J.  C.  Willis,  Commissioners,  the  fol- 
lowing proceedings  were  had  in  this  cause: 

And  now  this  petition,  No.  9,  and  also  petition. No.  10,  this  day 
consolidated  by  order  of  the  Commission,  having  come  on  for  final 
hearing  and  determination  by  the  Commission,  and  the  Commission 
having  considered  the  evidence  taken  therein,  the  agreements  made 
by  the  parties,  and  the  arguments  of  council,  and  the  Commission 
being  fully  advised  in  the  premises,  find  that  the  public  good  re- 
quires that  the  crossings  described  in  the  said  two  petitions  be  pro- 
tected by  an  interlocking  device. 


252 

It  is  therefore  ordered  by  the  Commission  that  the  said  Jackson- 
ville, Louisville  &  St.  Louis  Railway  Company  and  the  said  Wabash 
Railroad  Company  shall  proceed  to  protect  the  said  crossings  de- 
scribed in  said  petitions  by  an  interlocking  device,  the  plan  and  details 
of  which  may  be  agreed  upon  by  said  companies,  provided  they  find 
themselves  able  to  agree. 

It  is  further  ordered  that  the  said  Jacksonville,  Louisville  &  St. 
Louis  Railway  Company  shall  pay  the  original  cost  of  all  the  appa- 
ratus and  mechanism  of  the  said  interlocking  device  used  upon  its 
own  tracks  and  upon  the  tracks  of  the  St.  Louis  &  Chicago  Railway 
Company  (the  latter  being  by  agreement  of  the  said  J.,  L.  &  St.  L. 
Ry.  Co.) ,  including  all  signals,  derails,  pipe  lines,  wire  lines,  boxing 
and  all  connections  in  the  tracks  of  the  said  Jacksonville,  Louisville 
&  St.  Louis  Railway  and  the  St.  Louis  and  Chicago  Railway,  and 
also  the  cost  of  putting  the  same  in  ready  for  use,  and  of  maintaining 
the  same  in  good  order  and  repair;  and  that  the  petitioner  in  this 
•cause,  the  Wabash  Railroad  Company,  shall  pay  the  original  cost  of 
all  the  apparatus  and  mechanism  used  upon  its  own  tracks,  including 
•all  signals,  derails,  pipe  lines,  wire  lines,  boxing  and  all  the  con- 
nections in  its  tracks,  and  also  the  cost  of  putting  the  same  in  ready 
for  use,  and  of  maintaining  the  same  in  good  order  and  repair. 

It  is  further  ordered  that  the  cost  of  the  interlocking  machine 
proper,  and  the  expense  of  maintaining  the  same  in  good  working 
-order  be  divided  between  the  said  Jacksonville,  Louisville  and  St. 
Louis  Railway  Company  and  the  said  Wabash  Railroad  Company  in 
the  proportion  that  the  levers  used  to  operate  the  appliances  in  the 
tracks  of  each  company  bear  to  the  whole  number  of  levers  used  to 
operate  said  machine,  the  St.  Louis  &  Chicago  track  being  considered 
as  part  of  the  Jacksonville,  Louisville  &  St.  Louis  for  this  purpose. 

It  is  further  ordered  that  the  cost  of  the  tower  house  wherein  the 
interlocking  machine  is  housed,  and  the  expense  of  the  operation  of 
said  machine  (i.  e.,  wages  of  operators),  shall  be  paid  for,  two-thirds 
by  the  said  Jacksonville,  Louisville  &  St.  Louis  Railway  Company, 
and  one-third  by  the  said  Wabash  Railroad  Company. 

It  is  further  ordered  that  this  petition  be  held  under  consideration 
by  the  Commission  pending  the  efforts  of  the  companies  to  agree 
upon  a  plan  of  interlocking. 

Adopted  January  18,  1893. 


253 


BEFORE  THE 

Railroad  and  Warehouse  Commission 

OF  THE 

STATE  OF  ILLINOIS. 


THE  WABASH  RAILROAD  Co.,  Petitioner, 

vs. 

THE  CHICAGO,  PEORIA  &  ST.  Louis  RAILWAY  Co.,  LESSEE, 
ST.  Louis  &  CHICAGO  RAILROAD. 


CASE  No.  11 — PROTECTION  OF  CROSSING  NORTH  OF  LITCHFIELD. 


APPEARANCES: 

For  Petitioner,  GEO.  B.  BURNETT,  Attorney. 

For  Chicago,  Peoria  &  St.  Louis  Ry.  Co.,  I.  L.  MORRISON,  General 
Solicitor. 

For  St.  Louis  &  Chicago  Railroad  Co.,  F.  H.  JONES,  Attorney. 


FINAL  ORDER  OF  THE  COMMISSION. 


WEDNESDAY,  January  18,  1893. 

At  a  session  of  the  Railroad  and  Warehouse  Commission  of  the 
State  of  Illinois,  held  at  its  office  in  Springfield,  Illinois,  this  day, 
present,  Isaac  N.  Phillips  and  J.  C.  Willis,  Commissioners,  the  fol- 
lowing proceedings  were  had  in  this  cause: 

And  now  this  petition  having  come  on  for  final  hearing  and  deter- 
mination before  the  Commission,  and  the' Commission  having  con- 
sidered the  evidence  taken  herein,  the  agreement  made  by  the  parties 


254 

hereto  before  the  Commission,  and  the  contract  submitted  to  the 
Commission  subsequently  to  the  former  hearing,  and  being  fully  ad- 
vised in  the  premises,  find  that  the  obligations  of  the  contract  offered 
in  evidence  do  not  extend  to  the  present  parties,  and  that  there  are 
no  contract  obligations  between  the  parties  affecting  the  operation 
of  the  interlocking  device  to  be  put  in  at  said  crossing. 

It  is  therefore  ordered,  in  accordance  with  the  agreements  hereto- 
fore made  before  said  Commission  in  open  session,  that  the  said 
•crossing  described  in  the  petition  in  this  cause  be  protected  by  an 
interlocking  device,  the  same  being  judged  by  the  Commission  to  be 
necessary  for  the  public  safety;  that  one  half  of  the  cost  of  such 
interlocking  device,  and  of  the  expense  of  maintaining  the  same  in 
good  order  and  repair,  and  of  operating  the  same,  be  paid  by  the  said 
Wabash  Railroad  Company,  and  that  the  other  half  of  such  cost  and 
expense  be  paid  by  the  said  Chicago,  Peoria  &  St.  Louis  Railway 
Company,  lessee,  etc.,  this  division  being  in  accordance  with  the  said 
agreements  of  the  parties. 

It  is  further  ordered  that  this  petition  be  held  under  consideration 
by  the  Commission  pending  the  efforts  of  the  said  companies  to  agree 
upon  a  plan  of  interlocking. 

Adopted  January  18,  1893. 


No.  28 


LETTER   OF 


ISAAC  N.  PHILLIPS,  CHAIRMAN. 


UPON  THE  QUESTIONS 


1.  Shall  the  attempt  to  apportion  expense  of  operation  between 
the  passenger  and  freight  service  be  continued  or  abandoned? 

2.  Shall  taxes  be  treated  as  a  fixed  charge  or   an   operating  ex- 
pense? 


257 


RAILWAY  ACCOUNTING. 


BLOOMINGTON,  ILL.,  April  9,  1892. 

Hon.  William  O.  Seymour,  Chairman  Committee  on   Uniformity  of 

Railway  Accounts,  Washington,  D.  C. 

MY  DEAR  SIR: — I  greatly  regret  that  the  illness  of  my  wife  must 
prevent  me  from  meeting,  on  the  12th  inst.,  with  the  Committee  on 
Uniformity  of  Railway  Accounts,  of  which  I  am  a  member  with 
yourself  and  Mr.  Brown,  and  likewise  from  attending  the  conference 
of  Railway  Commissioners  to  follow  on  the  13th.  The  considerable 
time  devoted,  and  the  courteous  pains  taken,  by  the  Executive  Com- 
mittee of  the  Association  of  Railway  Accounting  Officers  to  ac- 
quaint our  Committee  with  the  grounds  upon  which  suggestions  for 
changes  in  the  form  of  report  were  made,  render  it  proper,  I  think, 
that  the  conclusions  of  all  members  of  the  Committee,  upon  the  im- 
portant questions  so  intelligently  discussed  before  us,  be  fully  stated. 

Torching  the  minor  changes  which  were  suggested  in  the  form  of 
report,  there  seemed,  at  our  late  conference  in  New  York  City,  to  be 
little  difference  of  opinion.  Prof.  Adams,  statistician  of  the  Inter- 
state Commerce  Commission,  who  met  there  with  us,  seemed  dis- 
posed to  adopt  all  such  suggestions  of  the  Committee  as  related 
merely  to  arrangement,  form  and  nomenclature.  We  may,  therefore, 
fairly  suppose  that  these  minor  suggestions  will  be  substantially  em- 
bodied by  the  statistician  in  the  next  "Analysis  of  Operating  Ex- 
penses" which  may  be  sent  out  for  the  guidance  of  accounting  offi- 
cers, and  the  same  need  not,  therefore,  be  treated  in  detail  in  the  re- 
port to  be  presented  by  our  Committee. 

QUESTIONS   STATED. 

The  two  vital  questions  with  which  we  are  to  deal  are: 

First. — Shall  the  attempt  to  apportion  expenses  of  operation  be- 
tween the  passenger  and  freight  serrice  be  continued  or  abandoned? 

Second. — Shall  taxes  be  treated  as  a  fixed  charge  or  as  an  operating 
expense?  or,  in  other  words,  and  more  specifically,  (as  I  understand 
the  question)  shall  taxes  be  deducted  from  earnings  before  making 
the  calculation  to  determine  the  "Percentage  of  Operating  Expenses 
to  Earnings"  provided  to  be  made  on  page  45  of  the  form  of  report? 

—no 


258 

These  questions  are  of  high  importance.  My  enforced  absence 
renders  it  perhaps  proper  that  I  should  place  before  yourself  and 
Mr.  Brown  the  conclusions  at  which  I  have  arrived  touching  them 
more  fully  than  I  had  time  to  state  those  conclusions  before  we 
parted  in  New  York. 

I  confess  I  originally  entered  upon  the  consideration  of  the  "sug- 
gestions" feeling  strongly  that  our  best  course  would  be  a  conserva- 
tive one.  I  felt  that  a  form  of  report  which  had  been  generally  ac- 
cepted, and  put  into  use  by  the  companies,  should  not  be  changed, 
except  at  the  imperative  demand  of  actual  experience.  I  was  accord- 
ingly, at  the  date  of  the  last  conference  at  Washington,  unwilling,  as 
a  member  of  the  Committee,  to  recommend  either  of  the  proposed 
changes  now  under  discussion.  The  propositions  contended  for,  to 
my  thinking,  then  remained  unproven  by  such  preponderance  as  the 
case  required;  though  I  had  grave  doubts  upon  both  questions  at  the 
time.  The  very  full  discussion,  had  before  our  Committee  at  New 
York  on  March  22d  and  23d,  enforced  very  strongly  and  fully  the 
reasons  for  the  changes  proposed;  and  for  one,  I  am  quite  ready  to 
speak  out  upon  those  questions  in  the  report  to  be  presented. 

DIVISION   OF    EXPENSES. 

First,  as  to  the  division  of  operating  expenses  between  passenger 
and  freight  service:  It  is  well  known  that  a  large  proportion  of  the 
expenses  of  operation  is  common  to  both  the  passenger  and  freight 
service,  but  exclusively  chargeable  to  neither.  Salaries  of  general 
officers,  station  agents,  and  telegraph  operators,  expenses  of  the,  main- 
tenance of  way  and  structures,  and  other  like  expenses,  will  serve  as 
examples  of  those  outlays  which  do  not  naturally  divide  between  the 
passenger  and  the  freight  service.  Other  expenses  there  are  that 
classify  themselves.  What  per  cent  of  the  entire  expense  of  opera- 
tion is  incapable  of  being  accurately  classified,  is  variously  stated; 
the  lowest  estimate  being  forty  per  cent.,  while  some  allege  the 
amount  to  be  as  high  as  sixty  per  cent.,  of  the  entire  expense.  This 
large  proportion,  expended  for  the  common  benefit  of  both  branches 
of  the  service  must,  therefore,  if  apportioned  at  all,  be  divided  in  ac- 
cordance with  some  arbitrary  general  rule.  The  rule  now  used  is 
stated  upon  page  42  of  the  form  of  annual  report  in  these  words: 

RULE   OP   INTER-STATE   COMMISSION. 

-  "All  expenses  which  are  naturally  chargeable  to  either  passenger 
or  freight  traffic  should  be  entered  in  their  respective  columns;  ex- 
penses which  are  not  naturally  chargeable  to  either  traffic  should  be 
apportioned  on  a  mileage  basis,  making  the  division  as  between  pas- 
senger and  freight  traffic  in  the  proportion  which  the  passenger  and 
freight  train  mileage  bears  to  the  total  mileage  of  trains  earning 
revenue." 

"Mixed  trains  will  continue  to  be  treated  for  the  present  as  one- 
fourth  passenger  and  three-fourths  freight." 


259 

MIXED   TRAINS.  . 

I  may  observe,  first,  that  the  rule  referring  to  mixed  trains  appears' 
so  far  as  I  can  learn,  to  rest  upon  nothing  more  definite  or  valuable 
than  some  one's  conjecture,  and  the  identity  of  the  conjecturer  seems 
to  be  unknown.  That  it  is  based  upon  any  experience,  or  upon  any 
theory,  that  finds  a  basis  in  the  facts  of  the  railway  business  of  the 
oountry,  has  never  been  made  apparent.  This  arbitrary  rule,  that 
one-fourth  of  the  expense  of  all  mixed  trains  must  be  charged  to  the 
passenger  service  and  three-fourths  to  the  freight  service,  is  applied 
alike  to  those  roads  which  do  a  large  passenger  traffic,  and  upon 
which  mixed  trains  are  a  rare  exception,  and  likewise  upon  frontier 
roads  where  both  passenger  and  freight  traffic  is  conducted  exclu- 
sively by  mixed  trains.  There  are  several  roads  of  the  latter  class 
in  the  State  of  Illinois;  and  in  the  west  it  may  be  said  generally  that 
freight  trains  carry  a  few  passengers  in  the  "caboose."  Whether 
every  freight  train  which  carries  passengers  at  all  would  be  classed 
as  "mixed,"  I  do  not  know;  but  certainly,  if  such  trains  are  so  classed, 
egregiously  wrong  results  would  be  obtained  under  this  rule,  for  on 
the  roads  of  the  west  many  trains,  carrying  a  heavy  tonnage  of 
freight,  frequently  carry  an  average  of  two  or  three  passengers  whose 
transportation  forms  but  a  mere  incident  of  the  entire  service  of  the 
train. 

Without  going  into  a  detailed  argument  it  will  appear  that  the 
basis  so  furnished  for  the  division  of  expenses  of  mixed  trains  must 
be  of  little  value;  and,  while  the  volume  of  "mixed"  service  is,  perhaps, 
on  the  whole,  not  large,  it  seems  to  me,  either  a  rule  which  will  pro- 
duce results  substantially  correct  and  true  should  be  found,  or  else 
the  effort  to  classify  the  common  expenses  of  mixed  trains  should 
not  be  attempted. 

WORKING   OP   THE   RULE. 

The  most  obvious  test  of  the  rules,  given  for  both  mixed  and  dis- 
tinct trains,  would  be  the  results  of  experience  in  using  them.  The 
test  of  actual  practice  fails  to  satisfy  me  that  these  rules  are  of  any 
utility,  either  to  the  companies  or  to  the  states  or  the  nation.  In- 
deed, if  not  substantially  correct,  they  could  not  be  expected  to  be  use- 
ful, and  may  prove  positively  vicious.  We  know  that  results  have 
been  reached  by  the  application  of  these  rules  for  division  which  are 
grossly  erroneous,  not  to  say  preposterous.  To  illustrate,  I  quote 
from  certain  letters  of  Stuyvesant  Fish,  president  of  the  Illinois 
Central  Railroad  Company.  The  first  concerns  the  report  of  that 
company  for  the  year  1890.  Mr  Fish,  writing  to  Chairman  Cooley 
said: 

"The  arbitrary  rule  laid  down  by  the  Commission  for  the  distri- 
bution of  expenses  between  the  passenger  and  the  freight  service 
make  it  to  appear  that  the  Illinois  Central  earned  37210oo  °f  a  cent  per 
ton  of  freight  per  mile,  and  only  ulim  of  a  cent  per  passenger  per 
mile.  The  case  of  the  Dubuque  and  Sioux  City  Railroad  is  even 
^worse,  it  being  made  to  appear  to  earn  33810oo  of  a  cent  per  ton  of 


260 

freight  per  mile,  while  its  average  receipts  per  passenger  per  mile- 
are  made  to  appear  to  be  27310oo  of  a  cent  less  than  the  estimated  cost 
of  carrying  each  passenger  one  mile.  Obviously,  the  rule  of  the 
Commission  charges  too  much  of  the  expense  to  the  passenger  and 
too  little  to  the  freight  service. 

"Being  unable  to  suggest  a  safe  rule  for  dividing  the  expenses,  we 
do  not  presume  to  criticise  the  one  adopted  by  the  Commission 
furthur  than  to  point  out  wherein  it  fails  of  application  to  the  busi- 
ness of  the  Illinois  Central  R.  R.  Co.,  and  to  submit  that  it  is  not 
right  to  draw  conclusions  from,  or  wise  to  predicate  action  upon,, 
figures  so  obviously  erroneous." 

And  again,  commenting  upon  the  report  for  1891,  Mr.  Fish  says: 

"The  arbitrary  rule  laid  down  by  the  Commission  for  the  distribu- 
tion of  expenses  between  the  passenger  and  the  freight  service  make 
it  to  appear  that  the  Illinois  Central  earned  during  the  past  year 
"^looo  of  a  cent  per  ton  of  freight  per  mile,  and  that  it  lost  "10oo  of  a 
cent  per  passenger  per  mile,  and  that  its  entire  passenger  business- 
was  done  at  a  loss  of  $141,715.37." 

Roads  could  perhaps  be  found  reporting  to  the  Interstate  Commis- 
sion whose  business  is  so  divided  between  the  passenger  and  the 
freight  service  and  is  performed  under  such  conditions  as  to  render 
the  rule  now  in  use  as  near  right  as  any  general  rule  that  could  be- 
devised.  Evidently  that  rule,  as  Mr.  Fish  says,  fails  of  proper  appli- 
cation to  the  business  of  the  Illinois  Central  Railroad  Company;  and,, 
not  improbably,  other  roads  may  be  found  from  whose  reports,  follow- 
ing this  rule,  it  would  appear  that  instead  of  too  much  expense  being 
charged  to  passenger  service  and  too  little  to  the  freight,  as  in  the 
case  of  the  Illinois  Central  Company,  it  would  be  found  that  too 
much  is  charged  to  freight  and  too  little  to  passenger.  I  have  no- 
such  case  at  present  in  mind;  but  the  varying  conditions  under 
which  the  different  railroads  of  the  country  do  business,  and  the  wide 
difference  in  the  character  of  their  respective  traffics,  render  it  highly 
probable  that  such  cases  exist,  and  might  be  found,  if  searched  for. 

In  answer  to  one  of  the  above  letters  of  Mr.  Fish,  Judge  Cooley 
among  other  things  wrote: 

"I  understand  very  well  that  it  is  absolutely  impossible  to  so  appor- 
tion the  cost  of  freight  and  passenger  service  as  to  reach  accurate 
results.  Nevertheless,  if  it  is  desirable  to  obtain  the  statistics  of  the 
roads  at  all,  they  ought  to  be  obtained  on  the  same  basis.  (?)  They 
would  not  otherwise  be  of  much  value.  Our  blank  reports,  therefore, 
are  the  same  for  all  the  roads  **#****- 

"I  may,  perhaps,  with  propriety  add,  that  I  can  very  well  see  that 
the  application  of  the  rule  does  not  lead  to  correct  information  regard- 
ing the  cost  of  passenger  traffic,  considered  by  itself;  and,  if  the  mat- 
ter were  exclusively  in  my  hands,  I  should  probably  make  considera- 
ble change.  It  is  too  important  a  matter,  however,  to  act  hastily 
upon,  and  I  think  any  action  should  be  taken  with  the  full  accord  of 
the  Association  of  Railway  Accounting  Officers.'1 


261 

I  inclose  herewith  copies  of  Mr.  Fish's  letters,  and  a  copy  of  the 
letter  of  Judge  Cooley  from  which  I  have  quoted  above;  likewise  a 
-copy  of  a  letter  of  Mr.  J.  C.  Welling,  vice  president  of  the  Illinois 
Central  road;  all  of  which  you  and  Mr.  Brown  may,  T  think,  find  in- 
structive upon  this  question,  I  submit  to  your  judgment  whether 
these  letters  might  not  with  benefit  be  placed  before  the  conference 
•of  Railway  Commissioners  when  our  report  is  under  consideration. 

OPINIONS   OP   ACCOUNTING   OFFICERS. 

Referring  to  the  statement  quoted  above  from  Judge  Cooley,  that 
"any  action  should  be  taken  with  the  full  accord  of  the  Association 
-of  Railway  Accounting  Officers,"  it  may  be  noted  that  the  opinions 
•of  the  Railway  Accounting  Officers,  in  the  Association  and  out, 
which  have,  through  the  kindness  of  the  statistician,  been  collected 
for  the  use  of  our  Committee,  are  practically  unanimous  in  favor  of 
discontinuing  the  attempt  to  apportion  expenses  between  passenger 
-and  freight  traffics.  Thus  we  have  the  "full  accord  of  the  Associa- 
tion," which  his  Honor,  Judge  Cooley,  thought  desirable;  and,  while 
I  am  aware  that  railway  officials  do  not  always  view  questions  of  this 
kind  from  the  standpoint  of  public  interests,  as  it  is  the  duty  of 
Railway  Commissioners  to  view  them,  still,  as  regards  this  matter,  I 
am  convinced,  after  full  reflection,  that  the  public  interest  is  not  an- 
tagonistic to  that  of  the  companies  themselves,  and  that  all  the  reo 
•ommendations  are  made  in  the  utmost  good  faith. 

PURPOSE  OF   THE   DIVISION. 

And  this  brings  me  to  a  consideration  of  the  purpose  of  requiring 
this  division  which  it  is  admitted  must  be  made,  if  at  all,  upon  an 
arbitrary  basis.  It  has  been  said  (and  we  should  meet  the  case 
squarely)  that  the  fixing  of  tariff  rates  for  the  transportation  of  pas- 
sengers and  freight,  under  governmental  authority,  is  likely  to  be- 
come one  of  the  leading  functions  of  the  Railway  Commissions  of 
the  country,  and  that  it  is  therefore  desirable  that  statistics  be  col- 
lected from  which  can  be  derived  the  information  called  for  at  page 
'61  of  the  Commissioner's  form  to  be  used  as  a  basis  for  the  fixing  of 
maximum  freight  and  passenger  rates.  It  is  said  such  items  as  "esti- 
mated cost  of  carrying  each  passenger  one  mile,"  "passenger  earn- 
ings per  mile  of  road,"  "passenger  earnings  per  train  mile,"  "esti- 
mated cost  of  carrying  one  ton  one  mile,"  "freight  earnings  per  mile 
of  road,"  "freight  earnings  per  train  mile,"  are  necessary  as  a  basis 
for  the  fixing  of  rates,  and  should  be  preserved  even  though  per- 
fectly correct  results  are  not  obtained. 

Every  one  will  admit  that  if  the  items  of  cost  of  freight  and  pas- 
senger service  above  quoted  from  the  form  at  page  61  could  be  ob- 
tained with  substantial  correctness,  the  information  would  be  valua- 
ble; and  it  would  certainly  be  quite  as  valuable  for  the  roads  as  it 
•would  be  for  Railway  Commissions  or  other  governmental  agencies. 
But  I  have  not  yet  arrived  at  the  point  of  being  able  to  see  how  a 
body  of  irrelevant  statistics,  which  are  supposed  to  support  another 
body  of  erroneous  deductions,  can  be  of  practical  value  to  any  legis- 


262    . 

lative  or  executive  branch  of  government,  any  more  than  thejr 
would  be  valuable  to  the  companies  themselves.  It  is  said  a  uni- 
form basis  must  be  adopted,  and  maintained,  to  secure  the  benefit  of 
comparisons;  but  it  is  difficult  to  understand  how,  if  one  error  is 
vicious  and  harmful,  an  accumulation  of  errors  may  become  salu- 
tary; and  it  is  quite  as  difficult  to  see  how  true  statistical  instruc- 
tion may  be  derived]  by  comparing  a  large  number  of  errors  more  or 
less  gross  with  each  other. 

I  have  little  share,  anyway,  in  the  expectation  that  just  railway 
rates  will  ever  be  established  through  statistical  tables  showing  "per 
mile,"  "per  ton,"  or  "per  passenger"  costs.  I  do  not  believe  that  in- 
formation of  this  kind  ever  did  furnish  the  basis  for  actually  fixing 
tariff  rates,  or  that  it  ever  will;  because  I  believe  that  even  where 
Railway  Commissions  are  clothed  with  power  to  fix  rates,  such  rates 
will  be  made  up  upon  a  different  basis,  and  depend  upon  different 
conditions  from  any  disclosed  by  such  statistics.  Particularly  must 
this  be  true  so  long  as  the  cost  items  per  unit  of  traffic  are  confess- 
edly erroneous  and  do  not  represent  the  true  facts  of  the  case. 

So  far,  therefore,  from  the  statistics  obtained  from  this  division 
being  valuable  as  affording  a  criterion  for  railway  rates,  I  believe 
that  the  very  fact  that  this  false  information  is  liable  to  be  so  used,  is- 
the  most  cogent  reason  which  could  be  given  for  ceasing  to  furnish 
a  basis  confessedly  erroneous.  A  man  who  travels  in  the  wrong  di- 
rection is  certainly  as  likely  never  to  arrive  at  his  destination  as  one- 
who  travels  not  at  all. 

By  all  this  I  do  not  mean  to  be  understood  as  saying  that  unless- 
absolutely  correct  and  accurate  information  is  obtained,  the  attempt 
to  classify  expenses  should  be  abandoned.  I  do,  however,  mean  to 
say  that  unless  a  result  which  is  substantially  and  approximately 
correct  can  be  had,  it  is  better  to  leave  the  subject  untouched,  and 
to  permit  (if  a  cost  criterion  must  be  had)  the  statistics  of  each  road 
to  be  estimated  separately,  and  in  the  light  of  its  own  conditions  of 
traffic,  and  I  may  add,  be  so  estimated  by  those  who  may  have  the 
rate-making  power,  and  who  will  presumably  be  as  good  "guessers" 
as  those  who  may  make  future  deductions  from  the  body  of  false 
statistics  we  are  now  engaged  in  collecting. 

UNIFORM  BASIS  NOT  PRACTICABLE. 

In  the  somewhat  lengthy  investigation  we  have  made  in  this  mat- 
ter, one  fact  has  arisen  to  a  position  of  absolute  clearness  in  my 
mind;  which  is,  that  no  universal  or  uniform  basis  of  such  division 
of  expenses  will  ever  yield  statistical  results  near  enough  correct  to- 
be  of  practical  use,  or  indeed,  not  to  be  positively  harmful. 

When  we  consider  that  the  proposed  division  of  expenses  must  on, 
say,  some  coal  road  of  Southern  Illinois  which  hauls  an  occasional 
passenger,  be  made  by  the  same  rule  and  upon  the  same  basis  which 
is  applied  to  a  passenger  road  connecting  New  York  and  Philadel- 
phia, or  Philadelphia  and  Washington,  what  possible  value  can  be 
expected  in  results  so  obtained? 


263 

If  it  were  possible,  as  I  believe  it  is  not,  in  the  case  of  any  single 
road  to  arrive  at  a  correct  rule  for  apportionment  of  operating  ex- 
penses, it  would  remain  doubtful  whether  the  rule  thus  found  would 
be  applicable  to  any  other  road  doing  business  in  the  country;  and, 
certainly,  it  could  never  be  applied  to  any  considerable  number  of 
other  roads. 

Nor  do  I  believe  that  any  geographical  classification  of  roads  by 
groups,  such  as  is  now  being  attempted  by  the  Interstate  Commerce 
Commission,  can  be  valuable  as  assisting  to  solve  this  difficulty.  It 
is  the  character  of  the  traffic  and  the  conditions  under  which  the 
service  is  performed  which  must  control  this  question,  and  point  to 
the  true  rule,  and  those  elements  will  not  likely  be  found  to  arrange 
themselves  upon  geographical  or  sectional  lines. 

CLASSIFICATION  OF  TAXES. 

Turning  now  to  the  second  question  above  propounded,  namely: 
how  "taxes"  shall  be  classed  and  treated  in  the  report,  I  will  say,  I 
have  been  on  this  subject  more  slow  in  arriving  at  a  conclusion,  and 
it  is  perhaps  fair  I  should  add,  I  am  less  confident  in  that  conclusion 
than  is  the  case  with  the  other  question  as  to  the  division  of  ex- 
penses. 

The  question  is,  whether  or  not  taxes  shall  be  transferred  from  the 
place  where  they  now  appear  at  page  31,  under  the  head  of 
"Deductions  from  Income,"  to  the  head  of  "Operating  Expenses," 
found  on  page  45,  on  which  latter  page  it  is  proposed  taxes  shall 
make  a  fifth  item,  under  the  sub-heading  "Recapitulation  of  Ex- 
penses." If  this  is  done,  operating  expenses  complete  would  then 
appear  under  five  items  as  follows: 

1.  "Maintenance  of  Way  and  Structures." 

2.  "Maintenance  of  Equipment." 

3.  "Conducting  Transportation.'' 

4.  "General  Expenses." 

5.  "Taxes." 

If  the  word  "expenses"  is  to  be  taken  in  a  narrow  sense,  taxes 
would  hardly  be  included.  But  as  I  understand  the  question  pre- 
sented, it  is  not  one  simply  of  the  meaning  of  words.  Webster 
defines  the  word  "expenses"  as  "that  which  is  expended,  laid  out,  or 
consumed;  cost;  outlay;  charge;  as,  the  expenses  of  war."  Substance 
is,  however,  more  important  than  form,  and  things  more  tangible 
than  words.  The  real  object  which,  I  assume,  is  sought  by  those 
who  wish  to  place  taxes  in  the  list  of  operating  expenses,  is  to  secure 
the  deduction  of  taxes  from  the  sum  of  the  earnings  before  making 
the  calculation  to  find  what  is  the  "Percentage  of  Operating  Ex- 
penses to  Earnings,"  which  is  provided  to  be  stated  at  page  45  of  the 
form  of  report.  Of  course  taxes  will  be  shown  in  any  event,  and 
wherever  they  appear  in  a  distinct  item  by  themselves,  and  from  the 
report  of  any  given  road,  it  can  readily  be  ascertained  how  much  of 
the  outlay  shown  is  for  taxes.  It  would,  therefore,  require  but  a 
small  calculation,  from  the  data  given  in  the  report,  to  arrive  at  the 


264 

percentage  of  operating  expenses  to  earnings,  with  the  taxes  added 
in  as  an  expense.  I  suppose  the  effect  which  is  sought  by  the  sug- 
gestion to  be  avoided  is  the  formal  and  what  may  appear  an  authori- 
tative statement  of  this  percentage  from  so  high  a  tribunal  as  the 
Interstate  Commerce  Commission  which  is  apt,  by  reason  of  the  great 
authority  and  dignity  of  that  body,  to  be  received  by  legislative  and 
executive  officials  as  a  correct  result  without  a  critical  examination 
in  detail  of  the  methods  by  which  the  result  has  been  obtained. 

It  has  occurred  to  me  no  good  reason  could  be  alleged  against 
making  the  statement  of  the  percentage  of  expenses  to  earnings  both 
ways;  that  is  to  say,  with  taxes  excluded  from  the  account  of  operat- 
ing expenses,  and  also  with  the  taxes  included  in  that  account.  This 
might  satisfy  the  fears  of  the  railway  officials,  and  would,  so  far  as  I 
can  see,  do  no  possible  harm. 

ANALOGY  OF  TAXES  TO  EXPENSES. 

There  is  a  sense  in  which  taxes  may  logically  be  regarded  as  an 
expense.  What  are  taxes?  Taxes,  so  far  as  they  concern  railroads, 
are  a  charge  which  railroad  property  pays  for  the  law  and  order  un- 
der which  civil  society  enables  them  to  conduct  their  business;  in 
short,  it  is  what  the  road  pays  for  the  maintenance  of  civil  govern- 
ment. If  requisite  protection  to  the  property  and  business  of  a  rail- 
road company  were  not  furnished  by  government,  or  if  we  could 
suppose  a  railroad  to  be  operated  in  some  land  without  governmental 
protection,  then  it  would  be  necessary  for  such  railroad  to  provide 
its  own  police  protection  and  regulation,  such  as  would  accomplish 
for  it  the  end  which  is  now  reached  through  government.  If  we 
thus  suppose  a  railway  company  to  be  procuring  this  service  for  it- 
self, we  can  see  the  resulting  outlay  would  come  strictly  in  the  form 
of  an  expense,  and  stand  upon  the  same  basis  as  the  wages  of  watch- 
men or  other  like  employes.  The  sum  paid  for  this  purpose  would 
then  be  as  much  an  "expense  of  operation"  as  clerk  hire  or  the  sal- 
aries of  trainmen.  But  the  railway  companies  of  the  land,  in  com- 
mon with  others,  find  an  agency  ready  established  which  secures 
them  in  the  enjoyment  of  their  property  and  franchises,  guarantees 
them  the  right  to  perform  their  functions  under  the  shield  of  law, 
supplies  them  with  police  protection,  affords  them  courts  through 
which  to  enforce  their  contracts,  and  officers  to  administer  the  laws 
which  fix  their  duty  and  liability  to  the  public  and  the  duty  and 
liability  of  the  public  to  them.  For  this  protecting  agency,  which  we 
call  government,  the -railroads,  like  others,  pay  through  the  medium 
of  taxes.  They  thus  in  substance  pay  for  a  service  rendered  them; 
and  looking  at  the  matter  from  this  point  of  view,  it  would  do  no 
violence  to  the  truth  of  the  case  if  the  certain  sum  so  paid  were  called 
an  expense  of  operation. 

Be  this  as  it  may,  however,  this  tax  is  a  sum  that  must  be  paid 
and  can  not  possibly  be  escaped.  Its  amount  and  its  payment  are 
both  beyond  the  volition  of  railway  officials.  It  is  a  burden  so  in- 
evitable that  its  very  name  has  become  associated  in  the  public  mind 
with  death,  and  the  phrase  "as  certain  as  death  and  taxess"  has 


265 

passed  into  common  speech.  Why  then  should  this  known  and  in- 
evitable charge  not  be  deducted  as  an  expense,  or  at  least  as  if  it 
were  an  expense,  when  computing  the  percentage  of  expenses  to 
earnings? 

If  I  am  correct  in  my  understanding,  that  what  is  desired  is  that 
taxes  be  deducted  from  earnings  before  making  the  computation 
which  is  to  show  to  the  world  what  per  cent  of  earnings  is  paid  out 
as  expenses,  then  I  am  free  to  say  I  see  no  objection  to  the  sugges- 
tion being  acceded  to. 

AN  ADJUCATION. 

My  attention  has  been  called  to  certain  decisions  of  the  Supreme 
Court  of  the  United  States  which  give  an  interpretation  of  the  term 
"net  earnings."  The  case  of  the  U.  P.  R.  R.  Co.  v.  United  States, 
99  U.  S.,  402,  arose  out  of  a  claim  made  by  the  Union  Pacific  R.  R. 
Co.  for  certain  services  alleged  to  have  been  performed  for  the  gov- 
ernment. The  act  which  had  granted  certain  land  and  bond  sub- 
sidies to  the  company  provided  among  other  things  that  "after  said 
road  is  completed,  until  said  bonds  and  interest  are  paid  at  least  5 
per  centum  of  the  net  earnings  of  said  road  shall  also  be  annually 
applied  to  the  payment,  etc."  In  adjusting  the  account  between  the 
government  and  the  road  it  therefore  became  necessary  to  determine 
what  were  "net  earnings"  within  the  meaning  of  the  statute;  and  it 
was  held,  apparently  without  controversy,  that  the  item  scheduled  by 
the  company  under  the  term  "General  Expenses  (including  taxes,)" 
should  be  deducted  from  the  gross  earnings  in  order  to  arrive  at  the 
net  earnings  from  which  payment  to  the  government  was  provided 
by  law  to  be  made.  Other  items  of  the  schedule  of  expenses  set  up 
by  the  company  were  controverted.  Among  the  controverted  items 
were  "interest  on  bonds,"  "sinking  fund  bonds,"  and  other  like 
•charges;  but  the  item  designated  as  expenses  in  the  schedule  fur- 
nished, and  which  was  stated  to  "include  taxes,"  was  permitted  to  be 
deducted  from  earnings  without  question.  The  decision  referred  to 
was  later  affirmed  in  other  cases  which  I  need  not  quote.  These 
cases  seem  to  establish,  as  a  proposition  of  law,  that  "net  earnings" 
must  be  found  by  deducting  taxes  with  other  operating  expenses. 

I  know  it  may  be  thought  that  this  is  not  a  question  to  be  settled 
by  legal  precedents.  If,  however,  we  regard  it  as  a  question  to  be 
solved  by  considerations  of  public  policy  alone,  it  must  still  be  re- 
membered that  that  is  never  a  sound  public  policy  which  does  not 
tend  to  establish  justice. 

Not  further  to  extend  this  letter,  which  has  already  been  made 
much  too  long,  my  conclusion  is  that  it  is  proper  and  right  to  deduct 
taxes  along  with  operating  expenses,  whether  calling  them  by  the 
technical  name  "expenses"  or  not,  from  the  earnings,  before  calculat- 
ing the  percentage  of  operating  expenses  to  earnings;  and  I  assent 
still  more  heartily  to  the  proposal  to  abandon  the  present  attempted 
apportionment  of  expenses  between  the  two  branches  of  passenger 
and  freight  service. 


266 

I  have  not  attempted  to  here  present  all  the  considerations  which 
have  occured  to  me  in  the  progress  and  as  the  result  of  our  investi- 
gations had  upon  these  important  questions.  I  doubt  not  other 
views  yet  more  conclusive  than  any  I  have  given  will  occur  to  the 
minds  of  my  brethren  of  the  Committee  and  be  embodied  in  the  re- 
port which  you  present. 

I  authorize  you  to  attach  my  signature  to  any  report  you  prepare 
which  embodies  substantially  the  views  herein  expressed. 

Again  expressing  my  regret  at  being  unable  to  meet  with  the 
Committee  and  with  the  Conference  of  Railway  Commmissioners, 
and  heartily  wishing  that  both  meetings  prove  as  pleasant  as  profit- 
able, I  remain 

Very  truly  yours, 
(Signed) .  ISAAC  N.  PHILLIPS, 


267 


BEFORE  THE 

Railroad  and  Warehouse  Commission 


OF  THE 

STATE  OF   ILLINOIS. 


No.    5. 

THE  MADISON,  ILLINOIS  &  ST.  Louis  RAILWAY  Co.,  Petitioner, 

vs. 

THE  WABASH  RAILROAD  Co.,  THE  CLEVELAND,  CINCINNATI,  CHICAGO 

&  ST.  Louis  RAILWAY  Co.,  THE  CHICAGO  & 

ALTON  RAILROAD  Co.,  Respondents. 


This  case  originally  came  up  under  the  former  Commission,  the 
following  being  the  opinion  and  order: 

OPINION   BY   PHILLIPS,  CHAIRMAN. 

Petitioner  seeks  to  cross  with  its  tracks  the  tracks  of  the  Wabash,  the 
"Big  Four,"  and  the  Chicago  &  Alton  Railroads,  near  Kinder,  Madison 
county,  Illinois.  The  respondent  companies  are  all  objecting  to  the 
proposed  crossing.  Hence  this  petition  for  an  order  of  the  Commis- 
sion granting  leave  to  cross. 

The  crossing  is  objected  to,  among  other  things,  upon  the  ground 
that  there  is  no  public  necessity  for  the  building  of  petitioner's  road 
across  the  tracks  of  respondents  at  the  point  proposed;  that  from  all 
that  appears  the  road  will  terminate  on  a  prairie  where  there  are  no 
inhabitants;  that  the  industries  and  factories  which  petitioner  al- 
leges it  is  seeking  to  reach  upon  the  west  are  merely  projected,  and 
no  one  knows  whether  they  will  ever  be  built. 

It  is  further  objected  that  the  only  object  of  petitioner  in  forcing 
this  crossing  is  to  connect  with  what  is  known  as  the  "Bluff  Line," 
just  beyond  the  point  of  crossing. 


268 

It  is  further  contended  that,  in  case  petitioner  is  permitted  to  cross 
-at  all,  an  overhead  crossing  should  be  ordered  in  order  to  avoid  the 
danger  and  delay  to  travel  and  transportation  which  the  statute  di- 
rects shall  not  be  "unnecessarily"  interfered  with. 

Finally  it  is  said,  in  case  petitioner  is  permitted  to  cross  at  grade 
as  prayed,  it  should  bear  all  the  expense  of  protecting  the  crossing, 
including  the  expense  of  operating  the  interlocker. 

Upon  these  several  points  of  objection  we  observe: 

1.  That  the  Railroad  Commissioners  of  Illinois  are  not  made  by 
law  judges  of  the  necessity  for  building  railroads.     The  General  As- 
sembly, in  the  act  for  the  incorporation  of  railroads,  has  fixed  all  the 
conditions  and  limitations  which  exist  on  this  subject.     Neither  this 
tribunal  nor  any  other  has  been  designated  by  law  to  judge  of  the 
traffic  necessity  of  new  lines.      Some  states,  we  believe,  have  put  re- 
strictions upon  the  building  of  railroads;  but  ours  has  not.     Charters 
are  taken  out  fixing  the  termini  of  the  line  to  be  built;  and  consider- 
able latitude  is  allowed  to  the  constructing  company  in  locating  its 
line  between  these  points.     Existing  lines  have  in  some  cases  been 
almost  paralleled  by  useless  and  speculative  lines  of  road;  but  there 
has  been  and  is  no  legal  authority,  so  far  as  we  know,  to  prevent  this, 
however  much  good  business  judgment  may  be  violated. 

2.  The  same  may  be  said  of  the  objection  that  the  sole  object  of 
the  petitioner  is  to  meet  the  "Bluff  Line,"  and  give  that   company 
traffic  arrangements  for  crossing  the  tracks  of  respondents.      If  this 
objection  were  sustained  it  would  go  to  the  right  of  petitioner  to 
build  the  road,  and  not  merely  to  the  particular  place  where  it  is 
seeking  to  locate  its  line.     We  are  not  aware  that  a  connection  with 
the  "Bluff  Line"  is  an  illegal  object,  or  that  the  Commissioners  of 
Railroads  have  any  power  to  examine  into  the  motives  of  petitioner 
and  to  deny  its  petition  upon  the  ground  that  its  object  is  not  deemed 
to  be  justifiable.      The  Commissioners  are  simply  directed  by  the 
statute,  after  hearing,  to  "prescribe  the  place  where  and  the  manner 
in  which  such  crossing  shall  be  made."      If  the  company  has  com- 
plied with  the  necessary  statutory  provision  to  enable  it  to  build  a 
railroad,  we,  as  Railroad  Commissioners,  are  not  authorized  to  deny 
that  a  crossing  of  some  kind  may  be  made  of  the  tracks  across  which 
it  projects  its  line.     In  other  words,  we  are  to  "prescribe"  a  crossing, 
not  deny  one  altogether. 

We  have  said  no  power  exists  to  prevent  petitioner  from  proceed- 
ing with  the  construction  of  its  line  upon  the  ground  that  it  meets 
no  public  necessity,  and  that  the  objects  and  motives  of  its  pro- 
jectors are  not  proper.  It  is  sufficient,  perhaps,  to  say  that  this  Com- 
mission can  assume  no  such  power  under  the  statute.  Petitioner,  be- 
fore proceeding  to  cross  the  right  of  way  of  respondents  with  its 
road,  must,  in  addition  to  getting  leave  of  the  Commission,  proceed 
to  condemn  its  right  of  way  in  the  County  Court.  If  any  power 
•exists  in  that  court  to  check  the  building  of  this  line  upon  the 
grounds  urged,  respondents  can  there  interpose  their  objections,  and 
that  tribunal  will  judge  of  its  own  jurisdiction  and  powers. 


269 

2.  The  objection  based  upon  the  danger  to  trarel  and  transporta- 
tion upon  respondents'  lines,  which  will  result  from  the  proposed 
crossing  raises  the  question  whether,  with  such  crossing  well  pro- 
tected by  interlocking,  will  entail  an  "unnecessary"  danger  and  de- 
lay within  the  meaning  of  the  statute.  It  is  the  judgment  of  the 
Commissioners  that  every  crossing,  however  well  protected  by  inter- 
locking, introduces  some  elements  of  danger  and  of  delay  to  travel 
and  transportation.  The  language  of  the  statute  is  that  future  cross- 
ings shall  be  constructed  "at  such  place  and  in  such  manner  as  will 
not  unnecessarily  impede  or  endanger  the  travel  or  transportation, 
upon  the  railway  so  crossed." 

We  once  had  occasion  to  observe  in  the  case  of  the  Chicago,  Madi- 
son &  Northern  R.  R.  Co.  vs.  The  Belt  Railway  Company  of  Chi- 
cago, that  the  word  "unnecessary"  is  not  used  in  this  statute  in  its 
strict  philosophical  sense.  In  that  sense,  only  that  is  "necessary" 
which  can  not  possibly  be  avoided,  and  there  would  always  be  a  pos- 
sibility of  changing  the  place  and  manner  of  a  crossing  in  order  to 
avoid  even  the  slightest  danger  or  delay.  The  General  Assembly 
evidently  expected  that  some  crossings  would  still  be  made  at  grade. 
Grade  crossings  were  not  positively  prohibited,  but  a  means  was  pro- 
vided by  which,  when  the  configuration  of  the  ground  proved  favor- 
able, crossings  might  be  ordered  to  be  constructed  over  or  under.  It 
was  doubtless  intended  that  reasonable  regard  should  be  had  to  the 
circumstances  of  each  case.  The  question  here,  therefore,  is  not 
whether  there  will  be  some  danger  and  some  delay,  but  will  this 
crossing  "unnecessarily"  impede  or  endanger  travel  or  transportation, 
within  the  sense  intended  by  the  General  Assembly?  Recognizing 
fully  the  desirability  of  separating  crossing  tracks,  where  that  is- 
feasible,  we  do  not  think  a  fair  application  of  this  statute  justifies  us 
in  ordering  an  overhead  crossing  in  the  present  case.  We  have- 
caused  an  estimate  to  be  made  of  the  expense  of  such  a  crossing, 
which  is  about  $77,000.  Such  a  burden,  the  railway  companies  of 
this  State  have  only  in  rare  instances  voluntarily  imposed  upon  them- 
selves in  the  past  for  the  sake  of  avoiding  danger  and  delay,  even 
though  when  their  lines  were  built,  no  such  safety  appliances  were- 
used  or  existed  as  those  which  may  now  be  put  in  at  this  crossing. 

Putting  expense  aside,  however,  as  not  to  be  weighed  against  dan- 
ger to  life  and  property,  a  further  difficulty  still  exists.  Petitioner  states- 
one  of  its  objects  to  be  to  connect  its  line  with  the  three  respondent 
railways,  particularly  the  "Big  Four,"  which  is  the  middle  track  of 
the  three,  they  all  lying  parallel  and  near  together  at  the  point  des- 
ignated, the  Wabash  being  upon  the  east,  the  ''Big  Four"  in  the 
middle  and  the  Alton  upon  the  west.  The  act  for  the  incorporation 
of  railway  companies  provides  that  every  corporation  formed  under 
the  act  shall  have  power: 

"To  cross,  intersect,  join  and  unite  its  railways  with  any  other 
railway  before  constructed  at  any  point  in  its  route  and  upon  the 
grounds  of  such  other  railway  company,  with  the  necessary  turnouts, 
sidings  and  switches,  and  other  conveniences  in  furtherance  of  the 
objects  of  its  connection;  and  every  corporation  whose  railway  is  or 


270 

shall  be  hereafter  intersected  by  any  new  railway  shall  unite  with 
the  corporation  owning  such  new  railway  in  forming  such  intersec- 
tion and  connection,  and  grant  the  facilities  aforesaid;  and  if  the  two 
corporations  can  not  agree  upon  the  amount  of  compensation  to  be 
made  therefor,  or  the  points  and  manner  of  such  crossing  and  con- 
nection, the  same  shall  be  ascertained  and  determined  in  manner 
prescribed  by  law." — 2  Starr  &  Curtis,  page  1914,  par.  6. 

In  order  to  "intersect,  join  and  unite"  its  tracks  with  the  track  of 
respondents,  as  it  seems  petitioner  has  a  right  to  do  under  the  above 
provision,  petitioner  would  be  compelled  to  build  an  additional  track 
upon  a  level  with  the  tracks  crossed.  Bat  the  same  difficulty  we  now 
have  would  again  present  itself,  for  petitioner  could  not  connect  with 
the  "Big  Four"  from  the  east  without  crossing  the  Wabash;  and  it 
could  not  connect  with  the  Alton  without  crossing  both  the  Wabash 
and  the  "Big  Four."  Thus,  if  petitioner  were  to  insist  upon  its  right 
to  connect  with  these  roads,  we  should  have  practically  a  grade 
crossing  at  last;  and  although  such  a  crossing,  made  for  the  purpose 
of  delivering  and  receiving  cars,  would  perhaps  be  less  used  than  a 
regular  grade  crossing,  it  would,  nevertheless,  in  the  judgment  of  the 
Commission,  be  such  a  crossing  as  would  require  protection  by  in- 
terlocking, Thus  we  see  an  order  for  an  overhead  crossing  would 
probably  tend  very  little  to  simplify  the  situation.  We  have  there- 
fore determined  that  we  can  not  deny  the  prayer  of  the  petition. 
While  interlocking  machines  do  not  entirely  avoid  danger  and  delay 
at  crossings,  they  do  have  the  effect  of  reducing  these  to 
a  minimum.  With  such  an  equipment  we  are  not  able  to  say  in  the 
language  of  the  statute  that  a  grade  crossing  here  would  "unneces- 
sarily impede  and  endanger  travel  and  transportation." 

4.  The  question  of  the  division  of  the  expense  of  operating  an 
interlocker  remains  to  be  considered.  Petitioner  concedes  that  the 
statute  casts  upon  it  the  burden  of  paying  the  first  cost  of  the  inter- 
locking appliance,  of  putting  tbe  same  in  ready  for  use,  and  of  main- 
taining the  same  in  good  repair.  Respondents  contend  that  to  this 
should  be  added  the  burden  of  also  operating  the  machine.  Upon 
this  question  the  Commissioners  have  fully  expressed  their  views  in 
the  opinion  in  the  case  of  the  Tamaroa  &  ML  Vernon  Ry.  Co.  vs. 
the  Louisville  &  Nashville  R.  R.  Co.,  decided  June  21,  1892.  We 
have  seen  no  reason  to  change  the  views  we  there  expressed.  Under 
the  construction  given  to  the  statute  in  that  case,  the  expense  of  the 
operation  of  this  interlocker,  i  e,  wages  of  operators,  would  be  paid 
for  upon  the  basis  of  the  number  of  toads  using  the  machine, 
each  paying  equally. 

In  accordance  with  the  views  here  expressed  an  order  will  be  en- 
tered granting  the  petitioner  the  right  to  cross  at  grade  at  the  point 
designated  in  the  petition.  The  order  will  provide  that  the  crossing 
shall  be  protected  by  an  interlocker  of  improved  modern  pattern, 
upon  the  construction  and  details  of  which  the  companies  will  be 
left  to  agree,  if  they  are  able  to  do  so.  The  order  will  provide  that 


271 

the  first  cost  of  such  interlocker,  the  expense  of  putting  the  same  in, 
and  the  expense  of  maintaining  the  same  in  good  order  and  repair 
shall  be  paid  entire  by  the  petitioner;  and  that  the  cost  of  operating 
the  said  machine  shall  be  paid  by  petitioner  and  the  three  respond- 
ents, equally,  one-fourth  each. 

ORDER. 

It  is  ordered  and  decided  that  petitioner,  the  Madison,  Illinois  & 
St.  Louis  Railway  Co.  have  leave  to  cross  with  its  tracks,  at  grade, 
the  tracks  of  the  respondents,  the  Wabash  Railway  Co.,  the  Cleve- 
land, Cincinnati,  Chicago  &  St.  Louis  Railway  Co.,  and  the  Chicago 
<fe  Alton  Railroad  Co.,  at  the  place  and  in  the  manner  specified  in 
the  petition  on  file  in  this  cause,  right  of  way  for  such  crossing  be- 
ing first  obtained  under  the  laws  of  Illinois  relating  to  Eminent 
Domain. 

It  is  ordered  further,  that  the  crossing  of  tracks  to  be  thus  formed 
be  protected  by  a  system  of  interlocking  signals  and  switches  to  be 
agreed  upon  by  the  parties,  with  this  Commission's  approval,  if  the 
parties  are  able  to  agree,  the  first  cost  of  such  interlocking  machine, 
the  expense  of  putting  the  same  in  good  order  and  repair  to  be  paid 
for  by  the  Madison,  Illinois  &  St.  Louis  Railway  Co.,  as  provided 
l>y  statute;  but  it  is  hereby  ordered  and  decided  by  the  Commission 
that  of  the  cost  of  the  operation  of  such  interlocking  device,  the  said 
Madison,  Illinois  &  St.  Louis  Railway  company,  petitioner,  shall  pay 
one- fourth,  and  the  said  Wabash  Railroad  Co.,  Cleveland,  Cincinnati, 
Chicago  &  St.  Louis  Railway  Co.,  and  the  Chicago  &  Alton  Railroad 
Co.,  respondents,  shall  pay  one-fourth  each.  And  inasmuch  as  the 
statute  only  directs  the  Railroad  and  Warehouse  Commission  to  pre- 
scribe by  order  a  plan  of  the  interlocking  in  case  the  parties  are 
unable  to  agree;  therefore,  it  is  ordered  that  this  petition  be  further 
held  under  consideration  by  the  Commission  pending  the  efforts  of 
petitioner  and  respondents  to  agree  upon  a  plan  of  interlocking. 

Adopted  January  3,  Itf93. 

On  March  13,  1893,-  the  respondents,  the  Wabash  Railroad,  Chi- 
cago &  Alton  and  Cleveland,  Cincinnati,  Chicago  &  St.  Louis,  rep- 
resented by  their  attorneys,  filed  petition  before  this  Commission 
praying  for  the  further  consideration  of  the  case,  and  to  set  aside  the 
order  of  the  former  Commission. 

April  14,  1893,  at  the  office  of  the  Railroad  and  Warehouse  Com- 
mission in  Springfield  case  was  set  for  hearing,  at  which  time  the 
attorneys  for  both  petitioner  and  respondents  appeared. 

The  motion  by  the  respondents  to  set  aside  the  order  of  the  former 
board  was  overruled  and  the  hearing  closed  with  no  modification  in 
the  order  as  previously  given. 

On  April  22d  the  respondents  caused  the  case  to  be  transferred,  by 
writ  of  certiorari,  to  the  Circuit  Court  of  Madison  county,  since  which 
time  we  have  no  further  knowledge  of  the  case. 


272 


INADEQUATE  TRAIN  SERVICE. 


In  our  report  for  last  year,  reference  was  made  to  the  complaint  of 
citizens  of  Benton  and  other  towns  on  the  Belleville  &  Eldorado- 
division  of  the  St.  L.,  A.  &  T.  H.  R.  R.  Co.,  alleging  insufficient 
train  service,  which  complaint  was  heard  by  the  Commission  at  Ben- 
ton,  Franklin  county,  on  January  9  and  10,  1894.  This  hearing  re- 
sulted in  the  following  opinion  and  order  by  the  Commission: 

Complaint  No.  101. 


CITIZENS  OP  BENTON,  et  al, 

Petitioners, 
vs 

THE  ST.  Louis,  ALTON  &  TERRE  HAUTE  R.  R.  Co., 

Respondents . 


Passenger  Train  Service. 


Filed  November  22,  1893. 

Hearing  at  Benton,  January  9  and  10,  1894. 


Appearances  : 

For  Petitioners,  HON.  C.  H.  LAYMAN  and  D.  R.  WEBB, 
For  Respondents,  HON.  GEO.  W.  PARKER  and 

F.  M.  YOUNGBLOOD. 


OPINION  or  THE  COMMISSION. 


Opinion  by  Cantrall,  Chairman. 


STATEMENT  OF  PETITIONERS. 


This  is  a  petition  of  the  citizens  of  Benton,  Eldorado,  Galatia, 
Thompsonville,  Christopher  and  Mulkeytown,  stations  on  the  Belle- 
ville and  Eldorado  Division  of  the  St.  Louis,  Alton  &  Terre  Haute 
Railroad,  a  line  of  railroad  extending  from  DuQuoin.in  Perry  county, 
to  Eldorado,  in  Saline  county,  a  distance  of  fifty  miles. 


273 

The  petition  charges  that  the  only  train  operated  by  the  respon- 
dent on  this  division  of  its  road  is  a  "mixed  train,"  consisting  of  coal, 
stock  and  freight  cars,  to  which  is  attached  two  passenger  coaches, 
leaving  DuQuoin  at  11  o'clock  a.  m,  and  arriving  at  Eldorado  at  3 
o'clock  p.  m.,  and  is  due  at  DuQuoin  at  6:50  o'clock  p.  m.  on  its  re- 
turn. That  Eldorado  is  the  junction  of  the  0.,  C.,  0.  &  St.  L.  and 
the  Louisville  and  Nashville  railroads. 

That  passengers  desiring  to  go  north  on  either  of  these  roads  are 
compelled  to  remain  in  Eldorado  from  sixteen  to  eighteen  hours. 
That  passengers  from  stations  east  of  DuQuoin,  desiring  to  go  to  St. 
Louis,  or  any  point  on  respondent's  road  west  of  DuQuoin,  are  com- 
pelled to  remain  in  DuQuoin  from  6:50  o'clock  p.  m.  until  4:35  oclock 
a.  m.  on  the  following  morning.  Thai  this  is  the  only  train  that  runs 
east  of  Benton.  That  a  train  consisting  of  a  baggage  car  and  one 
passenger  coach  leaves  DuQuoin  for  Benton  at  10:10  o'clock  p.  m.,on 
Sunday  and  Monday  only,  arriving  at  Benton  at  11  o'clock  p.  m., 
where  it  remains  until  3:45  o'clock  the  following  morning.  That  the 
"mixed  train"  carries  the  United  States  mail.  That  it  is  not  run  on 
its  schedule  time,  being  frequently  from  twenty  minutes  to  three 
hours  late,  and  that  by  reason  thereof  the  mails  are  delayed.  That 
the  present  train  service  does  not  furnish  the  patrons  of  the  road 
with  necessary  and  adequate  means  of  travel.  That  the  population 
of  Eldorado  is  2,000;  Galatia,  800;  Thompsonville,  500;  Raleigh,  500; 
Benton,  1,200;  Christopher,  200;  Mulkeytown,  200;  DuQuoin,  5,000. 
That  the  population  of  Perry  county  is  17,529;  Franklin  county, 
17,138;  Saline  county,  19,332. 

Petitioners  ask  that  the  defendant  be  required  to  "operate  its  rail- 
road as  a  continuous  line  from  St.  Louis,  Mo.,  to  Eldorado,  111.,  so 
as  to  give  to  complainants,  and  to  the  public  generally,  a  through 
daily  passenger  train  thereon,  making  appropriate  connections  with 
other  roads  at  St.  Louis,  DuQuoin  and  Eldorado. 

ANSWER   OF   RESPONDENT. 

The  respondent  avers  in  its  answer  to  the  petition: 

That  it  ought  not  to  be  required  to  furnish  greater  train  service 
than  patrons  of  the  road  are  willing  or  able  to  pay  for. 

That  the  business  of  the  line  will  not  justify  additional  train 
service. 

That  the  Board  has  no  authority  to  require  a  service  which  the 
business  will  not  compensate. 

That  the  company  is  not  financially  able  to  incur  an  expenditure 
beyond  the  earning  power  of  the  road. 

That  to  grant  the  prayer  of  the  petition  would  antagonize  both 
State  and  Federal  Constitutions. 

That  it  is  operating  this  division  at  a  loss. 

The  evidence  in  this  case  shows  that  the  respondent,  the  St.  Louis, 
Alton  &  Terre  Haute  Railroad  Company,  is  operating  as  lessee  aline 

—18  O 


274 

of  road  known  as  the  Belleville  and  Eldorado  Railroad,  running  from 
DuQuoin,  in  Perry  county,  eastward  through  Benton  to  Eldorado,  a 
distance  of  fifty  miles;  that  this  line  connects  at  DuQuoin  with  the 
Belleville  &  Southern  Illinois  Railroad,  also  operated  by  said  com- 
pany as  lessee,  running  from  DuQuoin  to  Belleville,  where  it  con- 
nects with  the  Belleville  &  Carondelet  Railroad  also  operated  by  the 
same  company  under  a  lease,  and  there  it  also  connects  with  its  pro- 
prietary line  for  St.  Louis.  That  said  company  is  also  operating  as 
lessee  a  line  of  railroad  from  Pinckneyville,  a  station  on  the  Belle- 
ville &  Southern  Illinois  Railroad,  to  Brooklyn,  Illinois,  known  as 
the  Chicago,  St.  Louis  &  Paducah  Railroad.  That  the  entire  length 
of  lines  owned  and  operated  by  the  St.  Louis,  Alton  &  Terre  Haute 
Railroad  Company  is  239.4  miles.  That  there  are  located  on  the  line  of 
respondent's  road  east  of  DuQuoin  seven  stations,  with  an  average 
population  of  about  700. 

That  the  population  of  DuQuoin  is  5,000,  Benton,  1,200,  and  Eldo- 
rado, 2,000.  That  the  aggregate  population  of  Perry,  Franklin  and 
Saline  counties  is  53,999.  That  DuQuoin  is  the  junction  of  the  Illi- 
nois Central  Railroad,  and  the  Belleville  &  Eldorado,  and  Belleville 
<fe  Southern  Illinois  Railroads.  That  Eldorado  is  the  junction  of  the 
Belleville  &  Eldorado,  the  Cairo  division  of  the  C.,  C.,  C.  &  St.  L.  and 
the  Shawneetown  branch  of  the  L.  &  N.  Railroads.  That  the  only 
train  operated  over  the  entire  length  of  the  B.  &  E.  division  is  a 
"mixed  train"  consisting  of  coal,  stock  and  freight  cars,  to  which  is 
attached  a  combination  car  and  passenger  coach;  that  this  train  car- 
ries freight,  express,  baggage,  stock,  mail  and  passenger;  that  said 
train  does  not  make  any  connections  at  Eldorado  with  either  of  the 
roads  at  that  place;  that  it  does  not  connect  at  DuQuoin  with  any  of 
respondent's  passenger  trains  for  St.  Louis.  That  this  train  makes 
a  round  trip  from  DuQuoin  to  Eldorado  daily  (except  Sunday);  that 
passengers  living  east  of  Benton  and  desiring  to  go  to  any  point  west 
of  DuQuoin  can  not  go  beyond  DuQuoin  on  said  train,  but  are  com- 
pelled to  remain  in  DuQuoin  over  night  and  resume  their  journey 
the  following  morning.  That  a  train  consisting  of  a  baggage  car  and 
one  passenger  coach  leaves  DuQuoin  for  Benton  at  10:10  o'clock  p. 
m.  on  Sunday  and  Monday  only,  arriving  at  Benton  at  11  o'clock  p. 
m.,  where  it  remains  until  3:45  o'clock  the  following  morning,  when 
it  leaves  for  St.  Louis. 

That  the  respondent  company  does  not  furnish  sufficient  passenger 
trains  to  accommodate  the  travel  along  the  line  of  the  Belleville  & 
Eldorado  division  of  their  road,  and  that  by  reason  thereof  the  pub- 
lic is  greatly  inconvenienced,  and  are  compelled  to  accept  passage  on 
a  "mixed  train"  if  they  desire  to  travel  on  the  line  east  of  Benton. 

That  the  respondent  company,  as  a  corporation,  has  the  financial 
ability  to  furnish  the  additional  passenger  train  asked  for  by 
petitioners. 


275 

That  in  their  annual  reports  to  the  Railroad  and  Warehouse  Com- 
mission the  gross  earnings  of  the  respondent  company  from  oper- 
ation, less  the  operating  expenses,  show  net  earnings  per  mile  of  road 
owned  and  operated  by  them  to  be  in — 


1888..      

$2,327  43 

1889  

1,853  53 

1890  

2,335  12 

1891  

2,411  00 

1892  

2,696  00 

1893              .                 ....                   

2  776  00 

It  is  true  that  the  evidence  of  the  auditor  of  respondent  shows  that 
estimating  the  earnings  of  the  B.  &  E.  division  upon  a  strict  mileage 
basis,  and  charging  it  with  4  per  cent,  of  the  general  expenses  of  the 
entire  system  in  addition  to  all  the  expense  they  are  able  to  locate  on 
that  division,  there  is  a  deficit  for  every  year  they  have  been  operat- 
ing the  road,  save  one.  In  the  opinion  of  the  Commission,  the  earn- 
ings of  this  division  should  not  be  confined  to  a  strict  mileage  basis, 
but  an  "allowance"  or  "constructive"  mileage  should  be  given  it,  such 
as  is  just  and  equitable,  and  as  is  the  custom  among  other  railroad 
corporations  operating  branches  in  connection  with  their  main  stem 
or  proprietary  line.  If  this  division  is  to  be  treated  by  respondent, 
in  its  sworn  report  to  the  Commission,  as  a  part  of  its  system,  then 
respondent  must  treat  it  as  a  part  of  its  system  where  the  rights  of 
the  public  are  affected.  It  can  not  be  a  part  of  the  system  of  re- 
spondent for  one  purpose  and  a  separate  and  independent  line  for 
another.  If  it  shall  bear  part  of  the  general  expense  of  the  whole 
system,  this  is  equitable,  this  is  just,  both  to  the  stockholders  and  to 
the  public. 

The  duty  a  railroad  corporation  owes  to  the  public  is  no  longer  a 
controverted  question  in  Illinois,  there  is  no  uncertain  sound  in  the 
•expression  of  our  Supreme  Court  on  this  subject.  Many  cases  have 
been  cited  by  counsel  for  petitioner  and  respondent,  all  of  which  we 
have  examined  with  care,  and  quote  from  some  of  the  leading  cases 
which  we  deem  in  point. 

"The  primary  consideration  and  principal  object  in  the  creation  of 
railroad  corporations,  and  in  conferring  upon  them  privileges  not 
enjoyed  by  private  citizens,  was  the  accommodation  of  the  public 
and  the  promotion  of  their  interests.  It  was  not  merely  to  aggran- 
dize and  enrich  the  stockholders;  the  benefits  to  be  derived  by  the 
stockholders  are  only  incidental  to  accomplish  the  primary  object. 
To  accomplish  these  purposes  the  people  in  a  large  number  of  coun- 
ties, cities,  villages  and  townships  have  incurred  debts,  which  in  the 
aggregate,  amount  to  a.vast  sum,  to  subscribe  for  stock  in  railroads, 
or  as  donations,  and  to  aid  in  their  construction.  In  many  instances 
heavy  taxes  have  been  laid  to  meet  the  interest  on  their  bonds  issued 
to  pay  for  such  stock,  and,  in  most  cases,  their  stock  has  been  wiped 
out  of  existence,  and  they  have  nothing  to  show  for  their  immense 
liabilities  thus  incurred.  Can  it  be  insisted  that  the  people  have  in- 
curred these  heavy  liabilities,  burdened  themselves  in  many  instances 
to  the  point  of  ruin,  only  for  the  benefit  of  private  stockholders? 


276 

On  the  contrary,  all  know  such  liberality  in  granting  the  aid  thus 
afforded,  and  privileges  thus  conferred,  was  mainly  to  advance  the 
public  interest,  and  private  interest  merely  as  an  incident." 

P.  &  R.  I.  Ry.  Co.  v.  C.  V.  M.  &  Co.,  6S  111.,  489. 

"The  rights  and  privileges  legally  exercised  by  them  are  exclusive 
in  their  nature,  and  for  that  reason  they  should  be  held  strictly  to  act 
within  the  powers  granted.  It  will  not  do  to  say  it  is  more  con 
venient,  more  profitable,  to  the  company  to  act  in  a  particular  man- 
ner. When  these  bodies  accept  their  charters  they  are  held  to  enter 
into  a  contract  with  the  State  to  discharge  all  the  duties  imposed, 
and  to  exercise  the  rights  and  privileges  conferred  on  them  in  the 
manner  described.  And  they  must  be  held  to  a  performance  of  this 
contract  in  precisely  the  same  manner  as  is  required  of  individuals." 

O.  &  M.  Ry.  Co.  v.  Dunbar,  et  al.,  20  111.,  626. 

"By  virtue  of  the  power  of  eminent  domain,  railroads  may  take  the 
lands  of  the  citizen  against  his  will,  and  can,  if  need  be,  demolish  his 
house.  Is  it  supposed  these  great  powers  were  granted  merely  for 
the  private  gain  of  the  corporators?  On  the  contrary,  we  all  know 
the  companies  were  created  for  the  public  good.  The  object  of  the 
Legislature  was  to  add  to  the  means  of  travel  and  commerce.  Rail- 
way charters  not  only  give  perpetual  existence  and  great  power,  but 
they  have  been  constantly  recognized  by  the  courts  as  contracts  be- 
tween the  companies  and  the  State,  imposing  reciprocal  obli- 
gations " 

C.  &  N.  W.  Ry.  Co.  v.  The  People,  56  111.,  379. 

They  are,  in  consideration  of  the  valuable  privileges  conferred 
upon  them  by  the  State,  bound  to  respond  by  providing  the  most 
ample  accommodations  for  the  public,  and  by  discharging  every  duty 
imposed  upon  them  with  fidelity  and  dispatch. 

111.  Cent.  R.  R.  Co.  v.  Waters,  41  111.,  379. 

Numerous  cases  can  be  found  both  in  the  reports  of  our  own  and 
other  supreme  courts  where  the  same  doctrine  has  been  repeatedly 
laid  down.  It  is  so  well  settled  that  it  will  not  be  denied. 

While  railroad  companies  have  the  right  to  appropriate  a  portion 
of  their  trains  exclusively  to  carrying  freight  and  to  entirely  exclude 
passengers  from  the  same,  by  a  parity  of  reasoning  the  public  may 
compel  a  railroad  company  to  furnish  sufficient  passenger  trains, 
from  which  freight  cars  are  excluded,  to  accommodate  the  travel. 

C.  &  A.  R.  R.  v.  Randolph,  53  111.,  510. 

It  is  insisted  by  counsel  for  respondent  that  the  case  of  The  People 
v.  The  O.  &  M.  Ry.  Co.,  120  111,,  page  200,  is  conclusive  of  this  case, 
and  in  connection  with  it  we  are  also  referred  to  the  opinion  of  ex- 
Attorney  General  Hunt.  We  are  quite  familiar  with  both.  The 
Attorney  General's  opinion  is  based  upon  the  opinion  in  the  O.  &  M. 
case,  therefore  we  need  only  refer  to  the  latter.  We  have  no  fault 
to  find  with  the  opinion  of  the  court  upon  the  admitted  facts  in  the 
case.  The  court,  in  passing  upon  the  case,  uses  this  language: 


277 

"It  is  believed,  however,  no  case  can  be  found  which,  in  the  ab- 
sence of  a  statutory  requirement,  has  gone  to  the  length  of  holding 
that  a  railroad  company  may  be  compelled  by  mandamus  to  increase 
the  number  of  trains  on  its  road,  and  we  are  satisfied  there  is  no  com- 
mon law  authority  for  making  such  order." 

By  reference  to  the  case  of  State  v.  H.  N.  H.  R.  R.  Co  ,  29th  Con- 
necticut, on  page  538,  it  will  be  seen  that  the  supreme  court  of  Con- 
necticut, in  a  proceeding  by  mandamus  to  compel  the  defendant 
company  to  run  a  passenger  train  to  the  terminus  of  their  road,  held, 
in  awarding  the  writ  of  mandamus,  "that  the  railroad  company  had 
no  right  to  retain  their  franchise  and  refuse  to  discharge  their  cor- 
porate duty — that  chartered  companies  are  obliged  fairly  and  fully  to 
•carry  out  the  objects  for  which  they  are  created,  and  that  they  can 
be  compelled  to  do  so  by  mandamus." 

The  case  is  approved  by  our  own  Supreme  Court  in  the  case  of 
the  C.  &  N.  W.  Ry.  Co.  v.  The  People,  56  111.,  page  384,  and  is 
therefore  as  much  an  authority  in  Illinois  as  the  decision  of  our  own 
Supreme  Court;  but  we  do  not  think  the  O.  &  M.  case  is  an  author- 
ity in  this  case,  for  the  reason  that  the  facts  upon  which  the  court 
based  its  opinion  are  admitted  as  true,  while  in  the  case  before  us 
they  are  not  only  not  admitted  but  are  controverted.  In  the  O.  &  M. 
•case  the  inability  of  the  company  to  comply  with  the  order  of  the 
court  granting  the  writ  of  mandamus  was  admitted,  while  in  the 
•case  before  us  the  evidence  shows  conclusively  that  the  respondent, 
•&B  a  corporation,  is  abundantly  able  to  furnish  ample  and  convenient 
train  service  on  any  part  of  its  system ;  therefore  the  two  cases  are 
not  parallel. 

The  power  of  the  Board  to  regulate  train  service,  or  to  make  an 
order  granting  the  prayer  of  the  petition  herein,  is  denied  by  re- 
spondent, and  in  this  connection  we  desire  to  call  attention  to  Sec- 
tion 163,  R.  S.,  Chapter  114,  which  provides: 

"Said  Commissioners  shall  examine  into  the  condition  and  man- 
agement and  all  other  matters  concerning  the  business  of  railroads 
and  warehouses  in  this  State  so  far  as  the  same  pertains  to  the  rela- 
tion of  such  roads  and  warehouses  to  the  public  and  to  the  accommo- 
dation and  security  of  persons  doing  business  therewith,  and  whether 
such  railroad  companies  and  warehouses,  their  officers,  directors, 
managers,  lessees,  agents  and  employe's  comply  with  the  laws  of  this 
State  now  in  force  or  which  shall  hereafter  be  in  force  concerning 
them.  And  whenever  it  shall  come  to  their  knowledge,  either  upon 
complaint  or  otherwise,  or  they  shall  have  reason  to  believe  that  any 
:such  law  or  laws  have  been  or  are  being  violated,  they  shall  prose- 
cute all  corporations  or  persons  guilty  of  such  violation."  *  *  * 

While  this  statute  has  never  received  a  construction  by  our  Su- 
preme Court,  we  are  of  the  opinion  that  a  fair  construction  of  it  will 
warrant  the  Board,  in  a  proper  case,  to  make  an  order  regulating  train 
service;  and  that  upon  the  failure,  neglect  or  refusal  of  the  railroad 
•corporation  to  comply  with  such  order,  that  the  courts  in  the  proper 
proceeding  will  compel  the  railroad  company  either  to  discharge  the 
•duty  it  owes  the  public,  or  forfeit  its  franchise. 


278 

It  is  not  insisted  by  the  Board  that  it  has  any  judicial  functions 
or  that  it  could,  independent  of  the  courts,  enforce  any  order  it  may 
be  pleased  to  make  concerning  this  or  any  other  matter  in  which  it 
may  nave  jurisdiction,  but  it  is  believed  by  the  Board  that  it  has  the 
power,  in  a  proper  case,  to  recommend  to  a  railroad  company  that  it 
shall  discharge  its  duty  to  the  public  as  required  by  law,  and  that 
upon  its  failure  to  do  so,  that  the  Board  may  cause  proper  suit  or 
suits  to  be  instituted  in  the  proper  courts  to  compel  it  to  do  so. 

The  franchise  granted  a  railroad  corporation  are  public  grants, 
and  clothe  the  property  constituting  the  railway  with  a  public  use. 
It  gives  it  a  semi-public  character  and  subjects  it  to  the  regulation 
and  control  of  the  State  in  behalf  of  the  public  to  the  extent  that 
its  charges  must  not  only  be  reasonable,  but  its  management  safe,. 
convenient  and  ample  for  the  accommodation  of  the  public.  When 
these  objects  are  accomplished,  the  right  of  the  State  control  ceases 
because  the  rights  of  the  public  are  secured. 

Therefore,  believing  as  we  do,  from  the  evidence  in  this  case,  that 
the  citizens  living  along  the  line  of  the  Belleville  and  Eldorado  di- 
vision of  respondent's  line  of  railroad  are  not  furnished  with  ample 
or  convenient  passenger  trains  to  accommodate  those  who  may  de- 
sire to  be  transported  over  said  division  or  any  part  thereof,  and  be- 
lieving further  that  no  case  can  be  found  requiring  the  public  to- 
travel  on  a  freight  or  "mixed  train,"  and  being  convinced  from  the 
evidence  in  the  case  that  the  respondent  has  the  financial  ability  to 
operate  a  passenger  train  in  addition  to  the  present  "mixed  train" 
now  being  operated  by  it,  over  its  entire  line,  and  in  doing  so  it 
will  not  only  discharge  the  duty  it  owes  to  the  public,  but  will,  at  the 
same  time,  increase  the  earning  capacity  of  its  road. 

We  therefore  recommend  to  you,  the  St.  Louis,  Alton  &  Terre 
Haute  Railroad  Company,  that  you,  without  delay,  caused  to  be 
placed  and  operated  on  the  Belleville  and  Terre  Haute  division  of 
your  road,  in  addition  to  the  "mixed  train"  now  being  operated  by 
you  on  said  line,  a  daily  passenger  train,  suitable  and  sufficient  to- 
carry  all  passengers,  with  their  necessary  baggage,  in  comfort  and  se- 
curity and  at  a  reasonable  speed,  and  that  you  operate  your  said 
railroad  from  East.  St.  Louis  as  a  continuous  line,  so  that  persons 
desiring  to  leave  Eldorado  and  intermediate  points  in  the  morning 
of  each  day  (Sunday  excepted)  may  be  able  to  go  on  said  railroad 
to  East  St.  Louis  and  return  the  same  day. 

This  order  the  St.  L.,  A.  &  T.  H.  R.  R.  Co.  refused  to  comply 
with  and  the  proceedings  against  the  railroad  company  for  a  writ 
of  mandamus  were  instituted  to  the  October  term  of  the  Franklin 
County  Circuit  Court. 

This  trial  resulted  in  the  dismissal  of  the  petition  of  the  Commis- 
sion, and  an  appeal  was  then  prosecuted  to  the  Supreme  Court  of 
the  State  of  Illinois  to  the  Springfield  division  thereof,  where  the 
case  is  now  pending  and  a  decision  almost  daily  expected. 


279 


COMPLAINTS. 


No.  111. 

Before  the  Railroad  and  Warehouse  Commissioners  of  the  State  of 
Illinois. 

Complaint  of  Wm.  H.  King  &  Son,  of  Kings,  Ogle  county,  Illinois, 
v.  the  Pittsburg,  Fort  Wayne  &  Chicago  Railway  Company  for  alleged 
extortionate  switching  charges.  Complaint  filed  March  10,  1894; 
hearing  at  Chicago  May  11,  1894.  Decision  rendered  Dec.  5, 1894. 

Opinion  of  the  Commission  by  W.  S.  Cantrell,  Chairman. 

The  object  of  this  complaint  is  to  correct  alleged  extortionate 
charges  for  the  switching  of  cars  of  wet  glucose  feed  from  the  Sugar 
Refining  Company's  factory  at  the  corner  of  Beach  and  Taylor 
streets,  in  the  city  of  Chicago,  to  the  tracks  of  the  Chicago,  Burling- 
ton &  Quincy  Railroad  Company.  It  is  alleged  by  the  complainants 
that  in  the  years  1892,  1893,  and  January  of  1894,  they  shipped  from 
Chicago,  Illinois,  61  cars  of  glucose  feed  to  Chana,  Ogle  county,  Illi- 
nois, and  193  cars  of  such  feed  to  Kings,  Ogle  county,  Illinois,  both 
of  which  places  are  on  the  line  of  the  Chicago,  Burlington  &  Quincy 
Railway  Company. 

That  all  such  feed  was  loaded  into  the  cars  of  the  respondent  at  the 
factory  of  the  Chicago  Sugar  Refining  Company,  at  the  corner  of 
Beach  and  Taylor  streets  in  the  said  city,  and  by  the  respondent 
switched  to  the  tracks  of  the  C.,  B.  &  Q.  R.  R  Co,,  and  that  the  dis- 
tance said  cars  were  transported  by  the  respondent  was  less  than  three 
miles;  that  the  respondent  wrongfully  and  unlawfully  charged  for 
such  switching  the  sum  of  five  dollars  per  car,  and  exacted  and  ex- 
torted from  the  said  C.,  B.  &  Q.  R.  R.  Co.,  and  by  it  entered  up  as 
back  charges,  and  charged  to  the  complainants  with  the  regular 
freight  bills  rendered  by  said  C.,  B.  &  Q.  R.  R.  Co.  to  the  complain- 
ants, and  the  complainants  thereby  paid  to  the  respondent  said  sum 
of  five  dollars  per  car  for  each  of  said  cars  above  mentioned  (as 
shown  by  freight  bills  filed  in  evidence),  by  paying  the  regular 
freight  bills  of  said  C.,  B.  &  Q.  R.  R.  Co.;  that  the  respondent  there- 
by exacted  and  extorted  from  said  complainants  the  sum  of  five  dol- 
lars per  car  for  such  switching  charges  when  it  was  only  entitled, 
under  the  rules  of  the  Commission,  to  two  dollars  per  car  for  such 
services. 

The  respondent  avers  in  its  answer  to  the  complaint  in  substance 
as  follows: 


280 

First — That  the  factory  of  said  Sugar  Refining  Company  is  not 
situated  on  any  track  owned  or  controlled  by  the  respondent. 

Second — That  the  rate  of  $5  per  car  charged  on  the  switching  in 
question  is  an  average  uniform  rate  fixed  by  the  respondent  for  all 
switching  between  all  points  along  the  line  of  this  respondent  in  the 
city  of  Chicago,  and  all  other  points  on  the  lines  of  all  other  roads  in 
said  city,  and  embraces  distances  varying  from  a  fraction  of  a  mile 
to  twelve  miles. 

Third — That  all  of  the  fifteen  or  more  railroad  companies  having 
lines  and  terminal  facilities  in  said  city  of  Chicago  on  January  1, 
1892,  adopted  uniform  rates  per  car  for  switching,  embracing  dis- 
tances varying  from  a  fraction  of  a  mile  to  twelve  or  more  miles, 
such  uniform  rates  being  the  sum  of  $3.50  to  $5  per  car. 

Fourth — That  the  charge  of  $5  per  car  as  set  forth  in  the  com- 
plaint includes  the  switching  into  and  out  of  said  yard  all  empty 
cars  taken  to  said  factory  to  be  loaded  and  all  empty  cars  taken  away 
from  said  factory  after  being  unloaded. 

Fifth — That  the  merchandise  with  which  said  cars  were  loaded  for 
transportation  is  of  a  perishable  nature  and  therefore  required  im- 
mediate attention,  whereby  cost  of  switching  was  enhanced. 

Sixth — That  the  rate  of  $5  per  car  charged  by  respondent  for 
switching  said  cars  herein  mentioned  is  not  unreasonable  or  excessive 
under  the  circumstances  of  the  case. 

Seventh — That  it  is  not  desirable  to  have  more  than  one  switching 
charge  for  any  line  and  that  charge  should  include  the  longest  dis- 
tances as  well  as  the  shortest  between  switching  points. 

OPINION. 

The  rule  of  this  Commission,  which  complainants  aver  has  been 
violated  by  the  respondent,  is  as  follows: 

"The  reasonable  maximum  rate  for  switching  loaded  cars  for  dis- 
tances not  exceeding  three  miles  shall  be  $2  per  car." 

The  question  before  us  is  whether  or  not  the  defendant  company 
has  been  guilty  of  a  violation  of  this  rule,  which  is  based  upon  the 
power  granted  this  Commission  by  the  statute  authorizing  them  to 
establish  reasonable  rates,  etc. 

It  appears  to  us  quite  conclusively  from  the  preponderance  of  the 
evidence  that  some  of  the  cars  in  question  were  hauled  by  the  re- 
spondent not  to  exceed  three  miles.  The  number  of  the  cars  so 
hauled  does  not  affect  the  merits  of  this  case.  If  only  one  car  was 
switched  by  respondent,  and  the  distance  was  not  exceeding  three 
miles,  and  a  charge  of  more  than  $2  was  made  for  this  service,  it  is  a 
violation  of  the  rule  above  referred  to. 

The  point  urged  by  respondent,  "that  it  did  not  take  these  cars 
from  any  point  on  any  track  owned  or  controlled  by  it,"  is  not  well 
taken,  for  the  reason  that  respondent  did  this  switching  with  a  full 
knowledge  of  the  switching  charges  as  fixed  by  the  Commission,  and 


281 

also  with  a  full  knowledge  of  the  fact  that  they  were  taking  these 
cars  from  a  point  on  a  line  of  railroad  not  owned  or  controlled  by  it, 
and  it  is  therefore  estopped  from  claiming  any  advantage  or  general 
benefit  thereby. 

It  is  also  true  that  respondent  could  not  have  been  compelled  to 
go  to  the  Sugar  Refining  Company's  works  for  these  cars,  as  it  was 
not  located  "on  any  tracks  owned  or  controlled  by  respondents,"  but 
having  elected  to  do  so,  it  can  not  now  plead  in  defense  of  its  con- 
duct that  the  cars  were  not  taken  from  a  point  on  track  or  tracks  that 
was  not  owned  or  controlled  by  it. 

If  respondent  in  good  faith  had  desired  to  avoid  the  violation  of 
the  rule  of  the  Commission  which  provides  a  maximum  rate  for 
switching  cars,  it  could  have  done  so  by  refusing  to  go  upon  the 
tracks  of  another  company  to  do  this  switching.  Not  having  done 
so,  the  rule  of  law  is  that  they  intended  to  violate  or  ignore  the  rule 
of  the  Commission  fixing  this  switching  charge. 

The  complainant,  when  he  ordered  the  cars  switched  from  the 
Sugar  Refining  Company's  works,  had  a  right  to  suppose  that  the 
Switching  Company  would  conform  to  the  rule  of  the  Railroad  and 
Warehouse  Commission  in  such  cases  made  and  provided.  If  the 
•distance  these  cars  were  switched  did  not  exceed  three  miles,  he  had 
;a  right  to  expect  to  pay  but  $2  per  car  for  the  service  performed. 

It  is  contended  that  the  evidence  does  not  show  that  the  charge  of 
$5  for  switching  the  cars  in  question  was  unreasonable.  In  the 
•opinion  of  the  Commission  this  position  is  not  tenable,  for  the  rea- 
son that  the  maximum  charge  fixed  by  the  Commission  is  made  by 
law  prima  facie  a  reasonable  rate,  and  any  railroad  company  which 
charges  more  must  assume  the  burden  of  showing  in  defense,  when 
prosecuted  for  extortion,  that  the  maximum  rate  fixed  by  the  Commis- 
sion is  unreasonable. 

In  summing  up  this  case,  we  have  arrived  at  the  following  con- 
clusion : 

The  evidence  clearly  shows  that  some  of  the  cars  in  question  were 
received  by  the  defendant  company,  the  Pittsburgh,  Fort  Wayne  & 
Chicago  Railway  Company,  at  a  point  less  than  three  miles  from  their 
destination,  and  that  such  cars  were  actually  hauled  by  respondent 
direct  to  their  destination,  a  distance  of  less  than  three  miles,  and 
that  the  respondent  company  has  charged  for  such  service  the  sum 
of  $5  per  car,  which  is  in  excess  of  the  rate  established  by  this 
•Commission  for  such  service,  and  that  this  constitutes  a  prima  facie 
•case  of  extortion. 

(Signed)  W.  S.  CANTRELL, 

Chairman. 


282 


No.  116. 

Before  the  Railroad  and  Warehouse  Commission  of  the  State 

of  Illinois. 


Complaint  No.  116. 


Mexican  Amole  Soap  Company, 
vs. 

Peoria  &  Pekin  Union,  Chicago,  Burlington  &  Quincy  and  Chicago, 
Rock  Island  &  Pacific  Railroad  Companies. 


REFUSAL  TO  SWITCH  CARS. 


Filed  October  15,  1894. 

Hearing  at  Chicago,  January  18,  1895. 


APPEARANCES: 

For  Complainants,  A.  A.  BRAYSHAW,  President  Mexican  Amole  Soap 
Company. 

For  Respondents,  HON.  W.  S.  HORTON  for  P.  &  P.  U.  and  C.,  R.  I. 
&  P.  and  L.  O.  GODDARD,  W.  F.  MERRILL  and  HON.  C.  M. 
DAWES  for  the  C.,  B.  &  Q.  R.  R.  Co. 


Opinion  of  the  Commission. 


Opinion  by  CANTRELL,  Chairman. 

Decided  February  1,  1895. 

In  the  matter  of  the  complaint  of  the  Mexican  Amole  Soap  Com- 
pany against  Peoria  &  Pekin  Union  Railway  et  al. 

STATEMENT   OP   FACTS. 

On  the  8th  of  October,  1894,  the  Mexican  Amole  Soap  Company,  of 
Peoria,  Illinois,  complainants  therein,  had  a  car  load  of  box  lumber 
shipped  from  St.  Paul,  Minn.,  to  Peoria,  111.,  over  the  Chicago, 
Burlington  &  Quincy  Railroad.  On  its  arrival  in  Peoria  the  com- 
plainants were  notified  of  the  fact,  and  gave  the  C.,  B.  &  Q.  R.  R. 
Co.  instructions  to  switch  the  car  over  the  tracks  of  the  P.  &  P.  U. 
Ry.  to  their  factory,  which  is  located  in  block  3  on  the  line  of  the* 
free  delivery  or  team  tracks  of  the  said  P.  &  P.  U.  Ry. 


283 

Complainants  were  informed  by  the  C.,  B.  &  Q.  that  the  P.  &  P.. 
U.  Company  would  not  accept  the  car.  The  president  of  the  com- 
plainant then  went  to  the  Chicago,  Rock  Island  &  Pacific  Railroad 
Company  offices  and  saw  Mr.  Lord  and  Mr.  Lintner  of  said  company, 
the  latter  of  whom  is  the  agent  there,  and  asked  them  to  switch  this- 
car  on  to  their  tracks,  which  are  also  located  convenient  to  complain- 
ant's factory,  and  are  parallel  with  the  P.  &  P.  U.  Company's  tracks. 
The  president  of  the  complainant  company  was  informed  by  said 
parties  that  they  would  like  to  accommodate  him,  but  could  not  do 
so.  He  then  told  them  that  he  was  willing  to  pay  whatever  they- 
charged  for  the  service,  but  they  still  refused  to  switch  the  car.  He 
then  made  application  to  the  P.  &  P.  U.  Company  to  have  this  car 
placed  on  their  tracks  opposite  complainant's  factory  in  block  3,  and 
it  also  refused,  giving  as  a  reason  therefor  that  it  had  written  in- 
structions not  to  switch  any  cars  from  the  C.,  B.  &  Q.  tracks  or  any 
other  line  that  was  not  in  their  Union.  He  replied  that  he  was  wil- 
ling to  pay  whatever  the  charge  was  for  said  service,  and  they  stated 
that  they  had  no  price  and  would  not  switch  the  car. 

The  tracks  of  the  P.  &  P.  U.  and  C.,  R.  I.  &  P.  R.  R.  Co.'s  above 
referred  to  are  known  and  designated  as  free  delivery,  team  or  un- 
loading tracks.  There  is  no  contention  here  that  the  P.  &  P.  U.  and 
C.,  R.  I.  &  P.  have  ever  refused  to  place  on  their  respective  free  de- 
livery tracks  any  cars  coming  to  Peoria  over  their  respective  lines. 
The  free  delivery  track  of  the  C.,  B.  &  Q.,  where  the  car  in  question 
was  delivered,  is  about  four  blocks  from  the  factory  of  complainants.. 
The  evidence  shows  that  there  is  an  interchange  of  business  between 
the  C.,  B.  &  Q.  and  the  C.,  R.  I.  &  P.  and  the  P.  &  P.  U.  companies 
in  Peoria  for  points  in  that  city  for  which  a  switching  charge  is 
made,  but  none  of  this  interchange  of  business  is  handled  on  the 
free  delivery  tracks  of  either  of  said  roads,  and  the  switching  that  is 
done  is  to  private  or  industry  tracks.  The  evidence  also  shows  that 
the  Peoria  railroads  refuse  to  switch  cars  arriving  at  Peoria  over 
lines  other  than  their  own  to  their  respective  free  delivery  or  team 
tracks.  They  base  their  refusal  to  switch  cars  as  above  upon  the 
ground  that  to  do  so  would  be  furnishing  terminal  facilities  for  other 
roads. 

OPINION. 

The  evidence  shows  in  this  case  that  the  car  in  question  was  shipped 
over  the  Chicago,  Burlington  &  Quincy  R.  R.  from  St.  Paul  to 
Peoria;  that  upon  its  arrival  in  Peoria  the  complainant  was  notified; 
that  it  requested  the  C.,  B.  &  Q.  agent  to  have  it  switched  to  a  point 
opposite  its  factory  on  the  P.  &  P.  U.  or  C.,  R.  I.  &  P.  R.  R.  Com- 
panies' tracks;  that  application  was  made  to  each  of  these  roads  and 
was  refused;  that  the  factory  of  complainant  is  located  on  the  team 
or  free  delivery  tracks  of  the  Peoria  &  Pekin  Union  Ry. ;  that  the 
tracks  of  the  Chicago,  Rock  Island  &  Pacific  Railroad  Company  at 
or  near  complainant's  factory  are  also  free  delivery  tracks. 

It  is  very  evident  that  that  the  only  object  complainants  had  in 
desiring  this  car  switched  was  its  own  convenience  and  to  save  the 
expense  of  unloading  by  wagon  and  hauling  to  its  factory.  The  C.,. 


284 

B.  &Q.  "team  tracks,"  where  this  car  was  placed,  are  about  four  blocks 
from  complainant's  factory,  and  while  there  is  no  doubt  that  either 
the  P  &  P.  U.  or  C.,  R.  I.  &  P.  "team  tracks"  are  nearer  the  factory 
than  the  "team  tracks"  of  the  C.,  B.  &  Q.,  yet  we  do  not  think  this  a 
sufficient  reason  why  either  the  P.  &  P.  U.  or  C.,  R.  I.  &  P.  should 
be  compelled  to  switch  this  car  to  their  free  general  delivery  or  team 
tracks, — to  hold  that  they  should  do  so  would  in  effect  hold  that  one 
railroad  company  can  be  compelled  under  the  law  to  furnish  terminal 
facilities  for  another,  which  we  do  not  believe  to  be  just  or  equitable. 

"Team  or  free  delivery  tracks"  are  tracks  that  are  built,  maintained 
•and  used  by  railroad  companies  for  loading  and  unloading  freight 
shipped  over  their  lines  for  the  accommodation  of  their  own  patrons. 
Each  railroad  company  is  required  to  furnish  its  patrons  with  rea- 
sonable terminal  facilities,  in  which  are  included  tracks  for  loading 
and  unloading  by  wagon. 

We  have  examined  the  evidence  in  this  case  carefully,  and  are  of 
the  opinion  that  the  real  question  in  this  case  is  not  whether  one 
railroad  company  can  be  compelled  to  switch  cars  for  another,  but 
rather,  "can  one  railroad  company  be  compelled  to  furnish  terminal 
facilities  for  another?"  We  are  of  the  opinion  that  it  can  not,  but 
that  each  railroad  company  must  under  the  law  furnish  its  own  ter- 
minal facilities  for  its  own  patrons. 

For  the  reasons  above  stated  the  complaint  is  hereby  dismissed. 


285 


CROSSINGS. 


THE  BELLEVILLE  CITY  RAILWAY  COMPANY,  Petitioner, 

vs. 

THE  LOUISVILLE,  EVANSVILLE  &  ST.  Louis  CONSOLIDATED  RAILROAD- 
COMPANY,  Respondents. 

PETITION  TO  DETERMINE  PLACE  OF  CROSSING. 

Petition  filed  March  20,  1894.     Crossing  viewed  March  26,  A.  D 
1894.     Answer  filed  April  3,  1894.    Hearing  April  3,  1894,  and  April 
19,  1894.     Opinion  filed  April  25,  1894. 

Opinion  of  the  Commission,  by  W.  S.  CANTRELL,  Chairman. 

This  is  a  petition  by  the  Belleville  City  Railway  Company  for 
leave  to  cross  with  its  track  the  track  of  the  Louisville,  Evansville  & 
St.  Louis  Consolidated  Railroad  at  grade  at  a  point  near  the  most 
northeasterly  corner  of  Lot  No.  106,  in  the  third  subdivision  of 
Cahokia  commons  in  said  St.  Clair  county  and  State  of  Illinois,  at 
an  angle  of  about  42  degrees,  the  center  point  of  crossing  being  about 
1,373  feet  south,  41  degrees  west  from  center  point  of  crossing  of  the 
St.  Louis,  Alton  &  Terre  Haute  Railroad  Company  with  the  said 
Louisville,  Evansville  &  St.  Louis  Consolidated  Railroad  Company 
in  the  city  of  East  St.  Louis. 

A  crossing  at  the  point  proposed  is  resisted  upon  the  ground : 

First — "That  the  proposed  crossing  will  unnecessarily  impede  and 
endanger  existing  travel  and  transportation  more  than  would  a  like 
crossing  at  the  present  intersection  of  the  Mobile  &  Ohio  and  the 
East  St.  Louis  &  Carondelet  (Conlogue)  Railroad." 

Second — "That  the  statute  of  1889  takes  away  the  right  of  the  new- 
comer or  petitioner  to  choose  its  place  of  crossing,  and  gives  the 
right  to  the  Railroad  and  Warehouse  Commission  to  prescribe  the 
place  where  and  the  manner  in  which  the  crossing  shall  be  made." 

As  to  the  first  objection,  we  do  not  believe  it  well  taken.  This 
part  of  respondent's  road  which  the  petitioner  seeks  to  cross  is  not 
used  for  passenger  service  at  all,  but  only  for  freight  traffic,  there- 
fore it  may  be  said  that  there  is  no  travel  over  it.  Taking  the  two 
words  used  in  the  statute,  "travel"  and  "transportation,"  and  con- 
struing them  together,  we  think  a  fair  construction  of  them  would 


286 

mean  "passengers  being  transported."  There  being  no  travel  trans- 
ported over  this  particular  part  of  line,  then  there  could  be  no  danger 
to  travel  from  the  crossing  asked  for  by  petitioner. 

But  admit,  for  the  purpose  of  this  case,  that  this  part  of  respond- 
ent's line  is  used  for  the  transportation  of  passengers,  as  well  as 
freight,  and  that  numerous  trains  are  operated  over  it  daily,  from 
either  side  of  this  proposed  crossing,  would  there  not  be  less  danger 
at  the  proposed  crossing  than  there  would  be  to  intersect  respond- 
ent's road  at  its  intersection  with  the  M.  &  O.  and  Conlogue  Rail- 
road, where  there  are  eighteen  regular  trains  of  the  M.  &  O.  that 
pass  over  this  crossing  daily  in  addition  to  the  almost  innumerable 
trains  of  the  Conlogue? 

We  can  not  comprehend  how  there  would  be  less  danger  in  cross- 
ing one  track  over  which  there  is  operated  fourteen  regular  trains 
than  there  would  be  in  crossing  three  tracks  over  which  is  operated 
the  same  fourteen  trains  and  eighteen  additional  trains,  together 
with  numerous  trains,  the  exact  number  of  which  we  are  not  advised, 
but  which  it  is  admitted  do  pass  over  this  crossing. 

In  the  first  instance,  these  fourteen  trains  are  only  freight  trains 
and  do  not  carry  passengers,  while  in  the  latter  six  of  the  eighteen 
are  passenger  trains.  Wherefore  we  do  not  consider  this  objection 
tenable  or  well  taken. 

As  to  the  second  objection,  "That  the  statute  of  1889  takes  away 
the  right  of  the  petitioner  to  select  or  choose  its  place  of  crossing 
and  gives  the  right  to  the  Railroad  and  Warehouse  Commission  to 
prescribe  the  place  and  manner  of  crossing,"  we  are  inclined  to  the 
opinion,  in  the  absence  of  any  judicial  construction  of  this  statute, 
that  this  position  is  well  taken.  All  the  cases  cited  by  counsel  on 
either  side  were  rendered  prior  to  the  statute  of  1889  and  are  only 
authority  in  this  case  by  analogy,  and  aid  the  Commission  but 
little  in  the  construction  of  this  statute. 

There  is  no  controversy  here  as  to  the  rights  of  petitioner  to  cross 
the  track  of  respondent,  but  it  is  most  seriously  contended  by  counsel 
for  respondent  that  it  is  the  duty  of  the  Commission  to  prescribe  a 
place  of  crossing  other  than  the  one  proposed  by  petitioner.  That 
the  same  results  can  be  obtained  by  the  petitioner  by  crossing  the 
track  either  at  the  intersection  of  the  Mobile  &  Ohio  and  Conlogue 
with  respondent's  road,  a  distance  of  about  1,256  feet  southwest  of 
proposed  crossing,  or  to  remove  the  crossing  1,373  feet  northeast  of 
the  proposed  crossing  to  the  intersection  of  the  respondent. 

The  crossing  of  respondent's  road  and  the  M.  &  O.  and  Conlogue 
roads  is  the  head  of  the  switching  yards  of  respondent's  road  and 
the  point  where  respondents  do  the  greater  part  of  their  switching 
aud  the  making  up  of  their  freight  trains.  To  locate  the  crossing  of 
petitioner  at  this  point  would  very  largely  increase  the  danger  both 
to  "travel  and  transportation,"  and  subject  each  of  the  roads  at  this 
point  to  the  greater  inconvenience  and  delay  in  handling  the  busi- 
ness of  their  respective  lines. 


287 

It  has  also  been  urged  that  petitioner  could  cross  the  line  of 
respondent  at  its  intersection  with  the  St.  L.,  A.  &  T.  H.  R.  R.,  a 
distance  of  about  1,373  feet  northeast  of  proposed  crossing;  to  do 
this  would  require  the  petitioner  to  relocate  that  part  of  its  line  from 
lot  263,  using  the  Cakokia  road,  which  is  a  public  highway,  to  the 
corner  of  lot  295;  thence  diagonally  across  the  race  track  to  the 
northeast  corner  thereof  where  it  would  intersect  the  crossing  of  the 
St.  L.,  A.  &  T.  H.  R.  R.  and  respondent's  line.  This  would,  to  say 
the  least,  be  impracticable  for  many  reasons.  First,  the  right  of  way 
along  the  Cahokia  road  and  across  the  race  track  would  have  to  be 
obtained,  which  would  cost  a  large  sum  of  money  and  doubtless  in- 
volve the  petitioner  in  long  continued  litigation,  which  would  delay 
the  completion  of  its  road. 

Second.  The  right  of  way  of  petitioner  already  obtained  north- 
west of  lot  263,  and  upon  which  petitioner  has  constructed  its  embank- 
ment, would  have  to  be  abandoned  and  all  the  cost  of  construction 
be  thrown  away. 

Third.  The  crossing  of  these  two  roads,  the  St.  L.,  A.  &  T.  H.  R. 
R.  and  the  respondent  would  be  met  with  just  as  persistent  opposi- 
tion as  at  the  proposed  crossing. 

Fourth.  If  the  permission  to  cross  should  be  obtained  at  this 
point,  there  is  no  way  that  petitioner  could  make  its  connection  with 
the  Conlogue  or  Wiggins  Ferry  Lines  except  to  use  the  tracks  of  the 
St.  L.,  A.  &  T.  H.  R.  R.  Co.,  which  would  impose  additional  burdens 
in  the  way  of  rentals  of  trackage — or  they  would  be  compelled  to 
condemn  a  right  of  way  over  lots  upon  which  are  already  built  busi- 
ness houses,  residences,  etc.,  and  which  would,  in  a  thriving,  grow- 
ing, prosperous  and  populous  city  like  East  St.  Louis,  cost  a  fabulous 
sum  of  money. 

The  St.  L.,  A.  &  T.  H.  R.  R.  operates  over  this  crossing  daily 
eighteen  regular  trains,  six  of  which  are  passenger  trains.  Add  to 
this  fourteen  freight  trains  of  respondent,  which  are  also  operated 
over  this  crossing,  and  we  have  a  total  of  thirty- two  trains,  and  if  we 
should  thrust  a  third  crossing  in  at  this  point  it  would  most  seriously 
interfere  with  the  traffic  of  these  lines  and  very  greatly  enhance  the 
danger  to  travel. 

In  the  final  argument  of  this  case  counsel  for  respondent  insisted 
that  if  the  petitioner  should  be  granted  the  permission  to  cross  the 
track  of  the  respondent  at  its  proposed  crossing,  then  the  Commision 
should  provide  in  its  order  that  it  protect  its  crossing  with  proper 
interlocking  devices.  If  the  respondent  operated  regular  passenger 
trains  over  this  particular  part  of  their  line,  the  Commission  would 
not  hesitate  to  order  the  crossing  interlocked,  but  as  they  do  not  do 
so,  and  inasmuch  as  it  is  stated  by  counsel  for  petitioner  that  its  road 
is  purely  a  freight  road,  we  do  not  see  the  necessity  at  this  time  to 
ask  the  petitioner  to  incur  this  expense.  There  are  so  many  cross- 
ings in  the  State  over  which  are  operated  a  large  number  of  passen- 
ger trains  daily,  and  which  are  more  dangerous  than  the  proposed 
crossing,  that  are  not  protected  by  interlocks,  that  we  do  not  feel 
that  we  should  say  to  this  petitioner  that  before  you  are  allowed  to 


288 

cross  respondent's  road  you  shall  interlock  your  crossing.  If  at  any 
time  in  the  future  the  business  of  petitioner  and  respondent  on  this- 
line  should  grow  to  that  extent  that  either  or  both  should  do  a  reg- 
ular passenger  business,  then  the  Commission  can  and  doubtless  will 
order  the  crossing  interlocked,  but  at  present  we  do  not  deem  it 
proper  to  do  so. 

The  fact  that  petitioner  has  graded  its  road  up  to  the  right  of  way 
on  either  side  of  respondent's  road  is  not  a  sufficient  reason  in  itself 
for  granting  the  prayer  of  petitioner — in  fact  it  is  not  a  good  practice 
in  cases  of  this  character  to  proceed  so  far  with  the  work  of  grading 
until  an  order  from  the  Commission  prescribing  the  place  and  man- 
ner of  crossing  shall  have  first  been  obtained. 

After  a  careful  examination  of  the  conditions  at  and  surrounding 
the  proposed  crossing,  we  are  of  the  opinion  that  a  more  practicable 
and  less  dangerous  crossing  of  respondent's  line  could  not  be  found 
than  the  one  asked  for  by  .petitioner,  and  to  change  it  to  either  of 
the  points  suggested  by  the  respondents  would  impose  additional 
and  heavy  burdens  of  expense  upon  the  petitioner;  and  unless  to  do 
so  would  render  the  crossing 'less  dangerous,  and  would  less  impede 
the  business  of  respondent's  road,  then  we  should  not  make  this 
change;  therefore  the  prayer  of  the  petition  is  granted. 

ORDER   OF   THE   COMMISION. 

It  is  therefore  decided  and  ordered  that  petitioner  have  leave  to 
cross  with  its  tracks  the  tracks  of  respondent's  road  at  grade  at  the 
point  proposed  by  it,  being  thirteen  hundred  and  seventy-three 
(1,373)  feet  from  the  center  of  the  track  of  the  St.  Louis,  Alton  & 
Terre  Haute  Railroad  where  the  same  crosses  the  line  of  respondent 
in  the  city  of  Eist  St.  Louis,  in  the  county  of  St.  Clair,  and  twelve 
hundred  and  fifty-six  (1,256)  feet  from  the  center  of  the  crossing  of 
the  Mobile  &  Ohio  Railroad  with  the  tracks  of  the  respondent  in  said 
city,  the  right  of  way  of  such  crossing  being  first  obtained  under  the 
laws  of  Illinois  relating  to  eminent  domain.  The  right  to  present  a 
petition  for  rehearing  is  expressly  reserved:  Provided,  same  shall  be 
filed  with  the  Secretary  of  the  Commission  within  five  days  from 
this  date,  and  provided  further,  that  counsel  for  petitioner  shall  be 
furnished  with  copy  of  petition  within  said  time. 

(Signed)  W.  S.  CANTRELL,  Chairman. 
Attest 

J.  W.  YANTIS,  Secretary. 

On  April  30  a  petition  for  rehearing  was  filed  with  Commission, 
which  was  heard  before  the  Commission  on  May  28,  1894,  and  the 
following  opinion  rendered  by  W.  S.  Cantrell,  Chairman: 

"The  causes  assigned  for  the  rehearing  in  this  case  were  presented 
on  the  argument  of  the  answer  to  the  original  petition  for  leave  to 
cross.  No  new  questions  have  been  raised  on  the  argument  of  this 
petition  by  counsel  on  either  side;  it  is  simply  an  attempt  to  'thresh 
the  old  straw  over  again,'  and  while  we  admire  the  zeal,  energy  and 


289    ' 

persistency  and  the  very  able  manner  in  which  counsel  has  presented 
the  case  for  the  respondent,  yet  we  do  not  feel  that  the  facts  warrant 
us  in  granting  a  rehearing  in  this  case. 

The  hearing  is  therefore  denied. 

It  is  further  ordered  by  the  Commission  that  this  case  stand  con- 
tinued for  such  further  order  or  orders  as  the  Commission  may  deem 
proper  to  make  when  occasion  should  require,  with  reference  to  an 
interlock  at  said  crossing. 

(Signed.)  W.  S.  CANTRELL,  Chairman. 


CHICAGO,   PADUCAH    &   MEMPHIS   RAILROAD    COMPANY,  Petitioner, 

vs. 

LOUISVILLE,  EVANSVILLE  &   ST.    Louis   CONSOLIDATED  RAILROAD 
COMPANY,  Respondent. 


LEAVE  TO  CROSS  AT  MT.  VERNON. 

This  petition  was  filed  with  the  Commission  on  November  7,  1894, 
and  came  up  for  hearing  at  Springfield  on  Decemcer  19,  1894. 

Both  companies  were  ably  represented  by  learned  counsel,  and  after 
hearing  the  evidence,  the  matter  was  taken  under  advisement  by  the 
Board,  and  resulted  in  the  following  order  being  made  by  them  under 
date  of  January  8,  Ib95: 


CHICAGO,  PADUCAH  &  MEMPHIS  RAILROAD 
COMPANY, 


Petition  for  leave 


VS.  r 

to  cross. 

THE  LOUISVILLE,  EVANSVILLE  &  ST.  Louis 
CONSOLIDATED  RAILROAD  COMPANY. 

ORDER  OF  THE  COMMISSION. 

It  is  ordered  by  the  Commission  that  the  petitioner,  the  Chicago, 
Paducah  &  Memphis  Railroad  Company,  have  leave  to  cross  with  its 
track  at  grade  the  track  of  the  respondent,  the  Louisville,  Evansville 
&  St.  Louis  Consolidated  Railroad  Company,  at  the  place  and  in  the 
manner  specified  in  the  petition  and  map  accompanying  same  on 
file  in  this  cause.  Right  of  way  for  such  crossing  being  first  obtained 
under  the  laws  of  Illinois  relating  to  eminent  domain. 

It  is  further  ordered,  that  the  crossing  of  tracks  to  be  thus  formed, 
be  protected  by  a  system  of  interlocking  signals  and  switches,  to  be 
agreed  upon  by  the  parties  with  this  Commission's  approval,  if  the 
parties  are  able  to  agree.  The  cost  of  construction  and  the  expense  of 

—19  O 


290 

maintenance  of  which  device  shall  be  paid  for  by  the  Chicago,  Padu- 
cah  &  Memphis  Railroad  Company  as  provided  by  statute;  and  it  is 
further  ordered  by  the  Commission,  that  of  the  cost  of  the  operation 
of  such  interlocking  device  the  said  Chicago,  Paducah  &  Memphis 
Railroad  Company  shall  pay  two-thirds  and  the  said  Louisville, 
Evansville  &  St.  Louis  Consolidated  Railroad  Company  shall  pay 
one  third. 

And  inasmuch  as  the  statute  only  directs  the  Railroad  and  Ware- 
house Commission  to  prescribe  by  order  a  plan  of  the  interlocking 
in  case  the  parties  are  unable  to  agree,  therefore  it  is  ordered  that 
this  petition  be  further  held  under  consideration  by  the  Commission 
pending  the  efforts  of  the  petitioner  and  respondent  to  agree  upon  a 
plan  of  interlocking, 

Adopted  January  8,  1895. 

(Signed.)  W.  S.  CANTEELL, 

C.  F.  LAPE, 
THOS.  GAHAN, 

Commissioners. 
Attest: 

J.  W.  YANTIS,  Secretary. 


291 


INTERLOCKING. 


OENTBALIA  &  CHESTER  RAILROAD  COMPANY,  Petitioner, 

vs. 
LOUISVILLE  &  NASHVILLE  RAILROAD  COMPANY,  Respondent. 


PROTECTION   OF   CROSSING — NASHVILLE,    ILL. 

Under  date  of  June  25,  1892,  it  was  ordered  by  the  Board  of  Rail- 
road and  Warehouse  Commissioners,  upon  further  consideration  of 
the  petition  of  the  Centralia  &  Chester  R.  R.  Company  for  leave  to 
-cross  the  tracks  of  the  Louisville  &  Nashville  R.  R.  Company,  that 
the  petitioner,  the  Centralia  &  Chester  R.  R.  Company,  shall  pay  the 
first  cost  of  the  construction  and  the  putting  up  of  an  interlocking 
device,  and  also  the  expense  of  maintaining  the  same  in  good  order, 
condition  and  repair.  But  the  question  of  apportioning  the  expense 
of  the  operation  of  said  plant  was  reserved  until  such  time  as  the  de- 
vice to  be  used  shall  have  been  agreed  upon  by  the  parties,  or,  in  case 
of  their  failure  to  agree,  prescribed  by  the  Commission.  Inasmuch 
as  under  the  statutes  the  companies  are  permitted  to  agree  upon  a 
plan  of  interlocking,  provided  they  can  do  so,  it  was  ordered  that  this 
case  be  held  under  consideration  by  the  Commission  pending  the 
efforts  of  the  parties  to  agree  upon  a  plan. 

On  the  14th  day  of  June,  1893,  came  the  parties  in  the  above  cause, 
by  their  respective  solicitors,  and  it  appearing  to  the  Commission 
that  the  parties  in  interest  had  been  wholly  unable  to  agree  upon 
the  kind  of  interlocking  system  or  device  to  be  used  at  the  point 
where  the  Centralia  &  Chester  R.  R.  Company  crosses  the  Louisville 
&  Nashville,  and  it  further  appeared  to  the  Commission  that  it  is  not 
probable  that  said  parties  will  be  able  to  agree  upon  said  interlock- 
ing system  or  device  for  protecting  said  crossing,  and  that  both  parties 
are  desirous  that  the  Commission  itself  shall  order  and  determine  the 
kind  of  interlocking  system  ^r  device  to  be  used  in  the  protection  of 
said  crossing,  and  the  said  parties  having  signed  an  instrument  in 
order  that  said  Commission  could  at  once  take  action  as  to  the  kind 
of  interlocking  system  or  device  that  should  be  used  for  the  protec- 
tion of  said  crossing. 


292 

Whereupon  the  Commission  instructed  their  consulting  enginee 
to  view  the  crossing  and  prepare  plans  for  an  interlocking  device  for 
the  protection  of  said  crossing.  Plans  were  prepared  by  the  consult- 
ing engineers,  approved  by  the  Commission,  and  forwarded  to  the 
railroad  companies  in  interest.  The  general  plan  of  the  device  ap- 
proved being  as  economical  as  practicable,  having  due  consideration 
for  the  statutes  and  the  requirements  of  the  Board  bearing  upon  this 
subject. 

In  the  early  part  of  April,  1894,  information  reached  the  Commis- 
sion that  the  order  of  the  Board  directing  the  construction  of  an  in- 
terlocking plant  at  this  point  was  not  being  complied  with.  Investi- 
gation was  made  as  to  the  facts  in  the  case,  and  finding  that  the  order 
was  being  disregarded,  the  Commission  on  May  28,  1894,  directed  the 
following  order  issued  to  the  Centralia  &  Chester  R.  R.  Company: 

To  the  Centralia  &  Chester  R.  R.  Co. : 

On  the  18th  day  of  March,  1892,  in  the  matter  of  the  petition  of 
the  Centralia  &  Chester  Railroad  Company  for  leave  to  cross  the 
track  of  the  Louisville  &  Nashville  Railroad  Company,  at  Nashville, 
Illinois,  an  order  was  made  by  the  Railroad  and  Warehouse  Commis- 
sion granting  the  prayer  of  your  petition. 

Afterwards,  to-wit:  on  the  21st  day  of  June,  1892,  a  further  order 
was  made  by  the  Commission  requiring  you,  the  said  Centralia  & 
Chester  Railroad  Company,  to  protect  said  crossing  by  a  system  of 
interlocking. 

It  has  been  made  known  to  us  that  you  have  not  complied  with 
said  order  above  referred  to.  and  the  said  Louisville  &  Nashville 
Railroad  Company  are  very  much  inconvenienced  and  their  trains 
unnecessarily  delayed  by  reason  thereof. 

Therefore,  you,  the  said  Centralia  &  Chester  Railroad  Company, 
will  please  take  notice,  that  if  .you  do  not  commence  in  good  faith  by 
June  15,  1894,  to  put  in  and  complete  (as  soon  as  it  can  reasonably 
be  done)  a  good  and  sufficient  interlocking  device  according  to  the 
plans  which  have  been  heretofore  submitted  to  and  approved  by  this- 
Commission,  we  shall  direct  the  Attorney  General  to  proceed  against 
you  for  the  penalty  provided  for  in  Section  211  of  Chapter  114,  R.  S. 
of  Illinois. 

(Signed)  W.  S.  CANTRELL,  Chairman. 

Attest : 

J.  W.  YANTIS,  Secretary. 

August  22,  1894,  report  was  received  from  the  consulting  en- 
gineers of  the  Board,  Messrs.  R.  P.  Morgan  &  Son,  approving  the 
interlocking  device  (which  had  been  put  in  as  directed)  and  August 
29,  1894,  permit  for  the  same  was  issued  by  the  Secretary. 


293 


MISCELLANEOUS. 


On  January  17,  1895,  the  Commission  sent  the  following  letter  to 
Chicago  Board  of  Trade  passing  upon  certain  questions  sub- 
mitted by  them  with  reference  to  the  storage  of  grain  in  the  Chicago 
elevators : 

SPRINGFIELD,  ILL.,  January  17,  1895. 

Jno,  Hill,  Jr.,  Board  of  Trade,  Chicago: 

MY  DEAR  SIR: — My  attention  has  been  called  by  the  Governor  to 
your  favor  of  the  llth  inst.  to  him  enclosing  copy  of  your  letter  to 
me  of  July  1,  1894.  and  my  reply  to  same  dated  July  21,  1894.  The 
questions  upon  which  you  desire  my  opinion  are  most  important 
ones,  and  I  shall  answer  them  as  I  understand  the  law. 

First — "Has  the  Board  of  Trade,  as  an  organization,  the  right  to 
examine  wheat  in  the  Chicago  elevators?" 

Answer — There  is  no  common  law  or  statutory  authority  giving  it 
such  right.  Section  150,  Chapter  114,  R.  S.  1893,  provides  that  all 
persons  owning  property  or  who  may  be  interested  in  the  same  in 
any  public  warehouse,  and  all  duly  authorized  inspectors  of  such 
property,  shall  have  the  right  to  examine  any  and  all  property  stored 
in  any  public  warehouse,  but  this  section  can  not  be  construed  so  as 
to  give  the  Board  of  Trade  the  right. 

The  section  just  quoted  is  the  only  provision  upon  this  subject, 
and  the  Supreme  or  Appellate  courts  have  never  passed  upon  the 
question,  therefore  I  am  left  to  place  my  own  construction  upon  the 
language  employed  in  this  section. 

Second — "Have  the  warehousemen  the  right  to  handle  their  own 
grain  through  their  own  houses  with  the  grain  of  their  customers?" 

Answer — At  common  law  a  warehouseman  exercised  a  mere  pri- 
vate employment,  but  under  our  statute  he  becomes  a  qua'si-public 
officer;  before  transacting  any  business  in  his  warehouse  he  is  re- 
quired to  obtain  a  license  from  the  proper  authority  and  to  give  bond 
for  the  faithful  discharge  of  his  duties.  This  becomes  necessary 
because  he  is  dealing  with  the  public  in  his  quasi-official  character, 
and  that  the  public  may  be  protected  from  loss  from  any  cause. 

He  is  allowed  to  charge  the  public  for  the  use  of  his  warehouse; 
he  must  publish  ea'ch  year  in  one  or  more  newspapers  a  table  or 
schedule  of  rates  charged  by  him  for  the  storage  of  grain  in  his 
warehouse,  which  can  not  be  increased  during  the  year;  he  shall  not 


294 

mix  grain  of  different  grades  together,  or  select  different  qualities  of 
the  same  grade  for  the  purpose  of  storing  the  same,  nor  shall  he 
attempt  to  deliver  grain  of  one  grade  for  another,  or  in  any  way 
tamper  with  grain  while  in  his  possession  or  custody  with  a  view  of 
securing  any  profit  to  himself  or  any  other  person. 

He  shall  not  discriminate  between  persons  desiring  to  avail  them- 
selves of  warehouse  facilities,  but  he  shall  receive  for  storage  any 
grain  that  may  be  tendered  him  in  the  usual  manner  in  which  ware- 
houses are  accustomed  to  receive  the  same.  He  is  required  to  issue 
a  warehouse  receipt  to  parties  storing  grain,  which  receipt  is,  as  the 
Supreme  Court  has  held,  a  contract  of  bailment,  the  warehouse- 
man thereby  becoming  the  mere  bailee  or  custodian  for  the  owner. 
Continuing,  the  Court  says:  "The  fact  that  the  warehouse  is  a  public 
warehouse  is,  of  itself,  notice  to  the  world  that  the  grain  therein 
stored  is  held  not  for  the  warehouseman  but  for  others." 

The  warehouse  act  was  passed  in  1871,  immediately  after  the 
adoption  of  the  new  constitution,  and  was,  to  use  the  language  of 
Chief  Justice  Breese  in  the  case  of  Munn  vs.  The  People,  "to  pro- 
tect prod  acers  and  shippers  against  exorbitant  charges  on  the  part 
of  warehousemen,  against  unjust  discrimination  and  against  all 
species  of  fraud  which  the  warehouseman  might  be  guilty  of." 

The  statute  requiring  warehousemen  to  receive  grain  for  storage 
does  not  mean  that  he  shall  receive  his  own  grain  from  himself,  but 
the  definition  of  the  word  receive  means  the  act  of  taking.  From 
whom?  From  one's  self?  Certainly  not,  but  from  a  third  person; 
therefore  the  construction  of  this  word  reeeive,  in  my  opinion,  can 
only  mean  that  article  or  thing  taken  from  a  third  person. 

While  the  statute  permits  the  warehouseman  to  mix  the  grain  of 
the  same  grade  and  of  different  owners,  in  my  opinion,  the  proper 
construction  of  this  statute  is  that  it  applies  only  to  the  grain  of 
third  parties  and  not  to  his  own  grain.  If  a  warehouseman  desires 
to  handle  his  own  grain,  he  can  do  so  without  taking  out  a  license  or 
giving  bond,  but  when  he  elects  to  become  a  public  warehouseman, 
he  can  only  handle  the  grain  of  the  public. 

As  to  your  last  question,  submitted  by  Mr. -Coon,  will  say  that  the 
grain  department  has  from  its  organization  inspected  grain  for  all 
persons  calling  for  inspection.  There  is  no  statute  requiring  th& 
department  to  do  so,  neither  is  there  any  statute  prohibiting  it.  It 
seems  to  be  an  unwritten  law,  which,  by  long  established  custom,, 
has  become  the  law  of  the  department. 

Yours  very  truly, 

W.  S.  CANTRELL, 

Chairman 


295 


INADEQUATE  TRAIN  SERVICE. 


In  our  report  for  last  year  reference  was  made  to  the  complainant 
of  citizens  of  Benton  and  other  towns  on  the  Belleville  &  Eldorado 
division  of  the  St.  L.  A.  &  T.  H,  R.  R.  Co.,  alleging  insufficient  train 
service,  which  complaint  was  heard  by  the  Commission  at  Benton, 
Franklin  county,  on  January  9  and  10,  1894.  At  the  time  of  the 
publication  of  our  last  report  the  case  was  pending  in  the  Supreme 
Court  on  an  appeal  from  the  Circuit  Court  of  Franklin  county. 

The  Supreme  Court  at  its  January  term,  1896,  handed  down  its 
opinion  reversing  the  judgment  of  the  lower  court,  with  instructions 
to  the  lower  court  to  award  the  writ  of  mandamus — we  give  below  the 
full  text  of  the  opinion. 

THE  PEOPLE  I 

vs.  >  Appeal  from 

ST.  Louis,  ALTON  &  TERRE  HAUTE  R.  R.  Co.  )  Franklin. 

STATEMENT   OF   FACTS. 

This  is  a  petition  for  writ  of  mandamus  in  its  amended  form, 
presented  in  the  name  of  the  People  of  the  State  of  Illinois,  at  the 
relation  of  William  S.  Cantrell,  a  citizen  and  property  owner  of  Ben- 
ton,  Franklin  county,  Illinois,  as  the  patron  of  the  defendant  railroad 
company,  the  prayer  of  which  petition  is  as  follows: 

"That  a  writ  of  mandamus  b.e  issued,  delivered  to  the  St.  Louis, 
Alton  &  Terre  Haute  Railroad  Company,  commanding  it  to  cause  to 
be  furnished,  placed,  run  and  operated  on  said  railroad,  extending 
from  Eldorado  to  DuQuoin,  a  daily  (Sundays  excepted)  passenger 
train,  each  way,  suitable  and  sufficient  to  carry  all  passengers  with 
their  necessary  baggage,  in  comfortable  and  reasonable  security,  and 
at  a  reasonable  speed,  and  to  operate  said  line  of  railroad  from  East 
St.  Louis  to  Eldorado  as  a  continuous  line,  and  that  upon  final  hear- 
ing hereof,  such  further  order  be  made  in  the  premises  as  to  the  court 
shall  seem  meet  and  proper." 

The  petition  was  answered  by  the  respondent  railroad  company; 
a  replication  was  filed  to  the  answer,  except  as  to  one  paragraph 
thereof  which  was  demurred  to,  and  the  demurrer  sustained;  a  jury 
waived,  and  the  cause  was  submitted  by  agreement  for  trial  before 
the  Circuit  Judge  without  a  jury;  the  trial  judge  rendered  judgment 
refusing  the  prayer  of  the  petition,  and  dismissing  the  same,  from 
which  judgment  the  present  appeal  is  prosecuted. 


296 

A  large  amount  of  testimony,  oral  and  documentary,  was  introduced 
upon  the  hearing,  including  reports  of  the  respondent  company  to 
the  Railroad  and  Warehouse  Commissioners;  the  charter  of  the 
Belleville  &  Eldorado  Railroad  Company,  as  found  on  pages  485, 486 
and  487  of  the  private  Laws  of  1861,  and  the  lease  executed  by  the 
Belleville  &  Eldorado  Railroad  Company  to  the  respondent  in  1880. 

The  petition  avers  that  the  railroad  of  the  B.  &  E.  R.  R.  Co.  is 
the  only  railroad  in  Franklin  county,  and  also  contains  the  following 
averments:  ,  . 

"That  on  or  about  December  1,  1883,  numerous  citizens  of  said 
towns  of  Benton,  Eldorado,  Christopher,  Mulkeytown,  Thompson- 
ville  and  other  towns  along  said  line  of  railroad,  presented  petitions 
to  the  said  Railroad  and  Warehouse  Commissioners  of  the  State  of 
Illinois,  complaining  of  the  train  service  on  said  railroad  extending 
from  Eldorado  to  Duquoin,  and  setting  forth  the  alleged  facts  relat- 
ing thereto,  and  asking  said  Commission  to  take  cognizance  of  their 
complaint,  and  by  appropriate  order  or  orders,  or  by  appropriate  suit 
or  suits,  compel  the  said  St.  Louis,  Alton  &  Terre  Haute  Railroad 
Company  to  run  its  trains  through  from  St.  Louis  to  Eldorado  as  one 
continuous  line,  and  run  a  daily  through  passenger  train,  with  appro- 
priate connections  with  other  trains  at  DuQuoin  and  Eldorado,  and 
give  the  public  such  further  relief  in  the  way  of  train  service  on  said 
railroad  as  justice  and  right  demand. 

"That  thereupon  said  Commission  gave  notice  to  said  railroad  com- 
pany of  the  presentation  of  said  petition,  and  such  action  was  there- 
upon afterwards  taken  and  had  by  such  Commission,  that  on  January 
9  and  10,  1894,  a  hearing  was  had  at  Benton  on  said  petition,  at  which 
time  and  place  said  railroad  company  was  present  and  represented 
by  its  president,  Hon.  George  W.  Parker,  and  its  counsel,  F.  M. 
Youngblood,  and  said  petitioners  were  represented  by  Hons.  C.  H. 
Layman  and  D.  R.  Webb,  and  thereupon,  after  hearing  and  consider- 
ing the  evidence  introduced  by  the  petitioners  and  said  company,  the 
said  Commission  made  and  promulgated  the  following  order  or 
recommendation  in  the  premises,  to- wit: 

"We  therefore,  recommend  to  you,  the  St.  Louis,  Alton  &  Terre 
Haute  Railroad  Company,  that  you,  without  delay,  cause  to  be  placed 
and  operated  on  the  Belleville  &  Eldorado  Division  of  your  road,  in 
addition  to  the  mixed  train  now  being  operated  by  you  on  said  line, 
a  daily  passenger  train,  suitable  and  sufficient  to  carry  all  passengers 
with  their  necessary  baggage,  in  comfort  and  security,  and  at  a  rea- 
sonable speed,  and  that  you  operate  your  said  railroad  from  East  St. 
Louis  to  Eldorado  as  a  continuous  line,  so  that  persons  desiring  to 
leave  Eldorado  and  intermediate  points  in  the  morning  of  each  day 
(Sundays  excepted)  may  be  able  to  go  on  said  railroad  to  East  St. 
Louis  and  return  the  same  day." 

"That  said  St.  Louis,  Alton  &  Terre  Haute  Railroad  Company  has 
wholly  neglected  to  comply  with  said  order,  or  follow  said  recom- 
mendation, but,  on  the  contrary,  refuses  to  comply  therewith,  and 
yet  continues  to  run  its  said  train  as  before,  and  still  fails  to  accom- 
modate the  traveling  public." 


297 

Such  other  facts,  set  up  in  the  pleadings  and  developed  by  the 
proofs,  as  are  necessary  to  an  understanding  of  the  question  involved 
are  sufficiently  stated  in  the  opinion. 

MAGRUDER  J.: 

The  main  question  in  this  case  is,  whether  a  railroad  company  can 
be  compelled  by  mandamus  to  run  a  passenger  train.  The  appellee 
operates  about  fifty  miles  of  railroad  running  from  DuQuoin  easterly 
to  Eldorado*  which  it  leased  in  1880  for  985  years  from  the  Belleville 
&  Eldorado  Railroad  Company;  and  it  is  conceded  that  it  runs  no 
passenger  train,  that  is,  no  train  for  passenger  service,  exclusively, 
over  this  distance  of  fifty  miles  between  DuQuoin  and  Eldorado. 
On  Sunday  and  Monday  evenings  a  train,  consisting  of  a  baggage 
car  and  one  passenger  coach,  runs  from  DuQuoin  easterly  to  Benton 
about  18  miles,  returning  from  Benton  to  DuQuoin  the  next  morning 
about  4  o'clock,  but  the  only  train  which  runs  the  whole  length  of 
the  branch  road  between  DuQuoin  and  Eldorado  is  what  is  called  a 
mixed  train,  consisting  of  coal,  stock  and  freight  cars,  to  which  are 
attached  a  combination  car  and  a  passenger  coach.  This  mixed  train 
leaves  DuQuoin  daily  at  11  o'clock  A.  M.  for  Eldorado,  and  return- 
ing in  the  afternoon,  arrives  at  DuQuoin  at  7:10  P.  M.  Appellee 
runs  through  trains  from  St.  Louis  by  way  of  Belleville  to  DuQuoin; 
but  the  mixed  train  in  question  does  not  connect  at  DuQuoin  with 
any  of  the  passenger  trains  run  by  appellee  from  DuQuoin  to  St. 
Louis,  nor  at  Eldorada  with  with  any  of  the  trains  upon  the  Cairo 
Division  of  the  C.,  C.,  C.  &  St.  L.  Railroad,  or  the  Shawneetown 
branch  of  the  Louisville  &  Nashville  Railroad.  Passengers  for  St. 
Louis  or  points  west  of  DuQuoin  must  remain  over  night  at  Du- 
Quoin and  take  the  train  next  morning  at  4:50  o'clock. 

The  mixed  train  carries  freight,  express,  baggage,  stock,  mail  and 
passengers;  on  account  of  the  freight  carried  and  handled,  it  is  a 
slow  train,  being  often  behind  its  schedule  time  from  twenty  minutes 
to  three  hours;  during  the  busy  season  it  often  has  to  be  cut  in  two 
on  the  grades,  one  part  going  forward  to  a  switch,  and  returning  for 
the  balance  cf  the  train,  including  the  passenger  coach;  at  Eldorado, 
the  entire  train  is  often  pushed  in  front  of  the  engine  down  to  the 
depot;  when  the  mixed  train  goes  east,  the  passenger  coach,  which  is 
used  by  all  classes  of  passengers,  both  ladies  and  gentlemen,  is  be- 
tween the  freight  cars  and  the  combination  coach;  the  mixed  train 
has  two  brakemen,  is  operated  by  hand  brakes,  and  has  no  air-brakes; 
the  regular  passenger  trains  on  the  other  parts  of  the  road  are 
equipped  with  air-brakes  operated  from  the  engine;  and  the  road  bed 
is  dirt  ballast,  and  the  passenger  car  on  the  mixed  train  is  dirtier  and 
dustier  than  the  passenger  cars  on  the  west  end  of  the  road;  there  is 
often  an  odor  from  the  stock  cars  ahead  of  the  passenger  coach;  it  is 
bad  for  ladies  and  children;  the  stock  cars  are  frequently  filthy  and 
offensive  from  the  manure  in  them;  the  train  is  often  delayed  at  the 
station  to  take  on  and  deliver  freight;  it  is  subject  to  jars  that  stag- 
ger the  passengers;  much  switching  is  done,  and,  when  switching  is 
done  at  a  station,  the  passenger  coach  is  usually  uncoupled;  and  pas- 
sengers must  wait  while  the  cars  are  loaded  with  stock,  cattle  and 
hogs,  and  are  often  inconvenienced  by  the  gang  planks  thrown  out. 


298 

The  country  through  which  the  mixed  train  passes  is  a  farming- 
country  and  well  settled.  The  products  shipped  are  mostly  grain, 
mill  products  and  live  stock,  and  the  freight  distributed  along  the 
line  is  merchandise.  St.  Louis  seems  to  be  the  commercial  cente'r 
for  that  part  of  the  State.  Of  the  counties  through  which  the  mixed 
train  runs  Franklin  county  has  a  population  of  17,138,  Perry  county 
17,250,  Saline  county  19,342;  and  of  the  towns  along  the  road.  DuQuoin 
has  a  population  of  about  5,000,  Benton  1,200,  Eldorado  2,000,  Galatia 
800,  Thompsonville  500,  Raleigh  500,  Christopher  200,  Mulkevtown 
200.  Improved  lands  in  that  section  are  worth  from  $20  to  $50  per 
acre. 

Such  being  the  character  of  the  mixed  train,  and  such  being  the 
population  and  character  of  the  territory  through  which  the  mixed 
train  runs,  ought  the  appellee  be  required  to  furnieh  the  people  with 
a  passenger  train?  The  question  is  not  whether  appellee  should  run 
more  than  one  train,  but  the  question  is,  whether  it  does  all  that  it 
is  required  to  do  when  it  runs  a  passenger  coach  attached  to  a  freight 
train,  or  whether  it  is  its  duty  to  run  one  or  more  passenger  coaches,, 
separate  and  disconnected  from  freight  cars,  for  the  accommodation 
of  passengers  only  and  not  of  passengers  in  connection  with  shippers. 

When  it  is  sought  by  mandamus  to  compel  a  railroad  company  to 
do  any  act  in  relation  to  the  equipment  and  operation  of  its  road,  the 
courts,  as  a  general  rule,  will  not  interfere  with  its  management  of 
its  railway  in  these  respects,  except  where  the  act  sought  to  be  en- 
forced is  specific,  and  the  right  to  its  performance  in  the  manner 
proposed  is  clear  and  undoubted.  (The  People  ex.  rel.  vs.  0.  &  A. 
R.  R.  Co.,  130  111.  175.)  Whether  or  not  the  People  are  here  en- 
titled to  relief  by  mandamus  against  the  appellee  company  must  be 
determined  by  the  answer  to  the  inquiry,  whether  the  act  sought  to 
be  enforced  is  specific,  and  whether  the  right  to  a  performance  of 
that  act  is  clear  and  undoubted. 

There  can  be  no  doubt  about  the  clear  legal  duty  of  the  appellee 
to  operate  the  railroad  from  DuQuoin  to  Eldorado,  leased  by  it  from 
the  Belleville  &  Eldorado  Railroad  Company.  The  act  of  February 
12,  1855,  to  enable  railroad  companies  to  enter  into  corporate  con- 
tracts, and  to  borrow  money,  authorized  railroad  companies  organ- 
ized under  the  laws  of  Illinois  to  make  contracts  and  arrangements 
with  each  other,  and  with  railroad  corporations  of  other  states,  for 
leasing  or  running  their  roads,  or  any  parts  thereof.  (Starr  & 
Curtis,  Stat.  p.  1921.)  In  case  of  a  lease,  by  one  railroad  company 
to  another,  the  lessee  assumes  the  rights,  franchises  and  obligations 
contained  in  the  charter  of  the  lessor,  and  must  conform  to  the  re- 
requirement  of  said  charter.  (1  Rorer  on  Railroads,  p  610;  19  Am. 
&  Eng.  Enc.  of  Law,  p.  897.)  "And  when  one  company  leases  its 
road  to  another,  the  lessee  must,  in  operating  it,  be  governed  by  the 
charter  of  the  lessor."  (City  of  Chicago  vs.  Evans,  24  111.  52.) 
When,  therefore,  the  appellee  leased  the  road  in  question  from  the 
B.  &  E.  R.  R.  Company,  it  assumed  the  charter  obligations  of  the 
latter  company,  and  agreed  to  conform  to  its  charter  requirements. 
Section  1  of  the  act  to  incorporate  the  B.  &  E.  R.  R.  Co.,  in  forca 


299 

February  22,  1861,  declares,  that  the  company  shall  possess  all  the 
powers  *  *  *  *  necessary  to  carry  into  effect  the  objects  and 
purposes  of  this  act,  which  is  to  lay  out,  build,  construct,  equip,  com- 
plete and  continue  in  operation  a  railroad  from  Belleville  in  St. 
Glair  county  by  way  of  Benton  in  Franklin  county,  and  Galatia  and 
Raleigh  and  to  Eldorado  in  Saline  county;  *  *  *  and  they  may 
make  connections  with  any  railroad  on  the  line,  or  at  either  terminus, 
on  such  terms  as  may  be  mutually  agreed  upon  between  the  parties." 
(Priv.  Laws  of  111.  of  1861,  p.  485).  Section  4  of  the  act  provides 
that  "said  company  shall  have  power,  when  in  their  discretion,  they 
have  a  sufficient  amount  of  capital  stock  subscribed,  to  proceed  to 
lay  out,  locate,  construct,  build,  equip,  complete  and  operate  their 
their  road."  (Idem.,  p,  486.) 

It  will  be  noticed  that  the  charter  of  the  B.  &  E.  R.  R.  Co.  pro- 
vides for  the  construction,  equipment  and  operation  of  a  railroad 
"from  Belleville  in  St.  Clair  county  by  way  of  Benton  in  Franklin 
county  and  Galatia  and  Raleigh  and  to  Eldorado  in  Saline  county." 
As  a  matter  of  fact,  however,  the  B.  &  E.  R.  R.  Co.  never  constructed 
a  road  from  Belleville  to  Eldorado.  It  constructed  a  road  about  50 
miles  long  from  Eldorado  to  DuQuoin  in  Perry  county,  the  latter 
place  being  distant  more  than  56  miles  from  Belleville,  and,  as  soon 
as  the  road  between  DuQuoin  and  Eldorado  was  finished,  and  on 
July  1,  1880,  it  leased  the  latter  road  to  appellee.  At  that  time  ap- 
pelle  owned  and  operated  a  railroad  running  from  East  St.  Louis,  oppo- 
site St.  Louis,  to  Belleville,  a  distance  of  a  little  more  than  14  miles, 
and,  prior  to  that  time  had  leased  for  a  long  term  of  years  the  rail- 
road of  the  Belleville  and  Southern  Illinois  Railroad  Company,  run- 
ning from  Belleville  to  DuQuoin,  and  was  then  operating  the  entire 
line  from  East  St.  Louis  to  DuQuoin  as  one  road,  commonly  known 
as  the  "Cairo  Short  Line." 

The  lease  made  on  July  1,  1880,  by  the  B.  &  E.  R.  R.  Co.  to  ap- 
pellee recites  the  ownership  by  appellee  of  the  road  from  East  St. 
Louis  to  Belleville,  and  its  lease  of  the  road  from  Belleville  to 
DuQuoin,  and  its  operation  of  the  two  as  one  line;  and  also  recites  the 
completion  of  the  road  from  DuQuoin  to  Eldorado,  and  that  it  is 
deemed  and  considered  for  the  mutual  interest  of  the  parties  hereto 
(the.  B.  &  E.  R.  R.  Co.  and  appellee)  "that  said  roads"  (the  three 
roads)  "should  be  placed  under  the  same  management  and  operated 
as  one  line;  and  to  that  end,  the  party  to  the  second  part"  (appellee) 
"has  agreed  to  lease  from  the  party  of  the  first  part"  (the  B.  &  E.  R. 
R  Co.)  "its  railroad  from  DuQuoin  to  Eldorado,"  etc.  It  thus  ap- 
peared from  the  recitals  of  the  lease  of  July  1,  1880,  that  the  object 
of  that  lease  was  to  so  connect  the  road  from  DuQuoin  to  Eldorado 
with  the  roads  from  East  St.  Louis  to  Belleville  and  from  Belleville 
to  DuQuoin,  as  that  the  three  roads  could  be  operated  as  one  line. 
And  so,  although  the  B.  &  E.  R.  R.  Co.  did  not  construct  a  road  from 
Belleville  to  Eldorado  as  its  charter  provided,  yet,  by  the  connection 
thus  made  with  the  road  leased  by  appellee  which  ran  from  Belleville 
to  DuQuoin,  it  became  a  part  of  a  continuous  line  from  Belleville  to 
Eldorado,  the  terminal  points  named  in  its  charter. 


300 

As  the  B.  &  E.  R.  R.  Co.,  the  lessor  company,  was  bound  to  equip 
and  operate  its  road,  the  appellee  the  lessee  company,  was  also 
bound  to  equip  and  operate  the  leased  road.  "Equipments  as  ap- 
plied to  railroads  has  deen  defined  to  be  'the  necessary  adjuncts  of  a 
railway,  as  cars,  locomotives.' "  (Rubey  vs.  Mo.  Coal  &  Mining  Co., 
21  Mo  App.  159;  6  Am.  &  Eng.  Enc.  of  Law,  p.  655,  n.  1.)  Section 
12  of  Article  11  of  the  Constitution  says:  ''Railroads  heretofore  con- 
structed, or  that  may  hereafter  be  constructed,  in  this  State  are 
hereby  declared  public  highways,  and  shall  be  free  to  all  persons  for 
the  transportation  of  their  persons  and  property  thereon,  under  such 
regulations  as  may  be  prescribed  by  laws.  (1  Starr  &  Cur.  Stat.  p. 
163.)  It  follows  that  the  obligation  to  equip,  and  operate,  and  con- 
tinue in  operation,  the  leased  road  involved  the  obligation  to  furnish 
and  use  cars  and  locomotives  for  the  transportation  of  persons  and 
property,  that  is  to  say,  for  the  carriage  of  both  persons  and  freight. 
Section  22  of  the  act  of  this  State  in  relation  to  fencing  and  operat- 
ing railroads,  provides  (2  Starr  &  Cur.  Stat.  p.  1940)  that: 

"Every  railroad  corporation  in  the  State  shall  furnish,  start  and 
run  cars  for  the  transportation  of  such  passengers  and  property  as 
shall,  within  a  reasonable  time  previous  thereto,  be  ready  or  be  of- 
fered for  transportation  at  the  several  stations  on  its  railroad  and  at 
the  junction  of  other  railroads,  and  at  such  stopping  places  as  may 
be  established  for  receiving  and  discharging  way  passengers  and 
freight."  It  is  claimed,  however,  in  behalf  of  appellee,  that  while  it 
is  obliged  to  furnish  cars  for  the  carriage  of  passengers,  yet  it  is  not 
necessarily  obliged  to  carry  passengers  upon  a  separate  passenger 
train;  and  that  it  has  the  right  to  exercise  its  own  discretion  as  to 
the  manner  of  their  transportation.  The  discretionary  power  of 
railroad  companies  in  this  respect  is  subject  always  to  the  condition, 
that  there  is  no  statutory  provision  limiting  and  restricting  such 
power,  and  that  its  exercise  is  not  opposed  to  the  terms  of  the  char- 
ter. (The  People  ex  rel.  vs.  C.  &  A.  R.  R.  Co.,  130  111.  175;  M.  &  O. 
L.  R.  R.  Co.  vs.  People,  13  111.  559;  2  Morawetz  on  Corp.,  2d  ed., 
Sec.  1119.) 

This  discretion  is  also  subject  to  the  condition,  that  it  must  be 
exercised  in  good  faith  and  with  a  due  regard  to  the  necessities  and 
convenience  of  the  public.  (The  People  ex  rel.  vs.  C.  &  A.  R.  R. 
Co.,  supra.) 

Counsel  for  appellant  rely  upon  articles  1  and  6  of  the  lease  of 
July  1,  1880.  Article  1  is  as  follows- 

"The  party  of  the  second  part  shall  have,  possess  and  operate  the 
said  railroad  from  DuQuoin  to  Eldorado  for  and  during  the  term 
hereinbefore  mentioned  upon  the  terms  and  conditions  herein  set 
forth,  and  shall,  at  all  times  during  the  continuance  of  this  lease, 
furnish  all  necessary  rolling  stock  and  equipment  for  the  complete 
and  perfect  operation  of  the  said  demised  railroad."  And  in  the 
sixth  article,  the  defendant  company  covenants  as  follows:  "The 
said  party  of  the  second  part  shall  and  will,  during  the  term  hereby 
granted,  operate,  maintain  and  keep  in  good  repair  the  railroad  and 
premises  hereby  demised  and  shall  from  time  to  time  make  all  nee- 


301 

essary  additions  and  improvements  and  shall  and  will  indemnify  and 
save  harmless  the  said  party  of  the  first  part,  its  successors  and  as- 
signs, from  and  against  all  costs,  charges  and  expenses,  damages  and 
liabilities  whatsoever  growing  out  of  the  maintaining,  repairing, 
operating,  or  using  of  the  said  road."  Tnus,  by  the  terms  of  the 
agreement  made  for  the  connection  of  the  road  of  the  B.  &  E.  R.  R. 
Co.  with  the  roads  of  appellee,  appellee  was  to  operate  the  three 
roads  from  East  St.  Louis  to  Eldorado  as  one  road,  and  to  "furnish, 
all  necessary  rolling  stock  and  equipment  for  the  complete  and  per- 
fect operation"  of  the  road  from  DuQuoin  to  Eldorado. 

But,  independently  of  the  provisions  of  the  lease,  which  was  a 
contract  between  the  lessor  and  lessee  companies,  the  right  of  the 
people  to  insist  upon  the  running  of  a  separate  passenger  train  is- 
implied  from  the  charter  obligation  to  equip  and  operate  the  road. 

Inasmuch  as  a  railroad  company  is  bound  to  carry  both  passen- 
gers and  freight,  the  obligation  of  the  appellee  required  it  to  furnish 
all  necessary  rolling  stock  and  equipment  for  the  suitable  and  proper 
operation  of  the  railroad  as  a  carrier  of  passengers  no  less  than  as  a 
carrier  of  freight.  It  can  not  be  said  that  the  carriage  of  passen- 
gers in  a  car  attached  to  a  freight  train  is  a  suitable  and  proper  oper- 
ation of  a  railroad  so  far  as  the  carriage  of  passengers  is  concerned. 
The  transportation  of  passengers  on  a  freight  train  or  on  a  mixed 
train  is  subordinate  to  the  transportation  of  freight,  a  mere  incident 
to  the  business  of  carrying  freight.  To  furnish  such  cars  as  are  nec- 
essary for  the  suitable  and  proper  carriage  of  passengers  involves  the 
necessity  of  adopting  that  mode  of  carrying  passengers  which  is  best 
adapted  to  secure  their  safety  and  convenience.  This  can  be  accom- 
plished better  by  operating  a  separate  passenger  train  than  by  oper- 
ating a  mixed  train.  That  is  to  say,  the  duty  of  furnishing  all  nec- 
essary rolling  stock  and  equipment  for  the  suitable  and  proper 
operation  of  a  railroad  carrying  passengers  involves  and  implies  the 
duty  of  furnishing  a  train  which  shall  be  run  for  the  purpose  of 
transporting  passengers  only,  and  not  freight  and  passengers  to- 
gether. 

Railroad  corporations  engaged  in  the  transportation  of  passengers 
for  hire  or  reward  are  bound  to  the  exercise  of  the  highest  degree  of 
care  and  diligence  in  the  conduct  of  their  business.  "Their  duties 
and  liabilities  in  this  respect  extend  as  well  to  the  appliances  used 
as  to  the  manner  of  using  them.  (2  Rorer  on  Railroads,  pp.  948, 
949.)  But  there  are  necessary  differences  between  passenger  and 
freight  trains.  (2  Wood  on  Railroads,  p.  1288.)  These  differences 
need  not  be  here  noticed,  but  are  well  understood  and  easily  recog- 
nized. 

Railroad  companies  are  not  required  to  adopt  on  freight  or  mixed 
trains  all  the  appliances  which  they  use  on  passenger  trains,  but 
they  are  merely  required  to  use  the  highest  degree  of  care  consistent 
with  the  practical  operation  of  such  trains.  (Oviatt  vs.  Dakota 
Cent.  R.  Co ,  43  Minn.  300;  44  Am.  &  Eng.  R.  R.  Co.'s  311.)  When 


302 

passengers  are  carried  on  freight  or  mixed  trains,  the  care  required 
by  the  company,  so  far  as  such  appliances  are  concerned,  is  such  as 
the  nature  of  the  train  permits.  (2  Wood  on  Railroads,  p.  1268.) 

And  when  a  passenger  rides  on  a  freight  or  mixed  train,  he  takes 
upon  himself  the  increased  risk  and  lessened  comfort  which  is  inci- 
dent thereto;  nor  has  he  the  legal  right  to  demand  any  other  care  in 
the  management  of  such  a  train  than  is  requisite  for  that  kind  of  a 
train,  or  any  other  security  than  such  a  mode  of  conveyance  affords. 
(2  Rorer  on  Railroads,  p.  947;  C.  &  C.  U.  R.  R.  Co.  vs.  Fay,  16  III. 
568;  C.,  B.  &  Q.  R.  R.  Co.  vs.  Hazzard,  supra.) 

It  follows,  that  when  the  only  train  operated  by  a  railroad  com- 
pany is  a  mixed  train,  passengers,  being  unable  to  ride  upon  any 
other  kind  of  train,  are  forced  to  incur  risk  and  submit  to  incon- 
venience, which  do  not  exist  on  a  separate  passenger  train.  Hence, 
the  operation  of  a  railroad  with  a  mixed  train  only  is  inconsistent 
with  the  duty  of  furnishing  such  cars  and  locomotive  as  are  necessary 
to  the  suitable  and  proper  operation  of  the  railroad  when  engaged  in 
the  passenger  traffic.  We  are  not  unmindful  of  the  fact  that,  within 
certain  limits,  a  discretion  may  be  exercised  as  to  what  rolling  stock 
and  equipment  are  necessary  for  the  suitable  and  perfect  operation 
of  a  railroad  carrying  passengers.  Where  the  mode  of  carrying 
passengers  is  separate  from  the  mode  of  carrying  freight,  the  legiti- 
mate exercise  of  discretion  may  begin.  What  we  hold  is,  that  there 
can  not  be  a  suitable  and  proper  operation  of  the  railroad  as  a  carrier 
of  passengers  where  the  car  in  which  it  carries  its  passengers  is  part 
of  a  freight  train,  because  freight  trains  are  inferior  to  passenger 
trains,  and  travel  in  them  attended  with  less  comfort,  convenience 
and  safety  than  travel  in  passenger  trains.  The  inferiority  of  a 
freight  train  to  a  passenger  train  as  a  mode  of  carrying  passengers 
is  so  obvious  that  no  man  of  ordinary  understanding  would  regard 
the  use  of  a  freight  train  for  the  purpose  of  hauling  a  passenger  car 
as  a  suitable  and  proper  operation  of  a  railroad  in  the  matter  of 
transporting  passengers. 

We  are,  therefore,  of  the  opinion  that  the  act  here  sought  to  be  en- 
forced— the  running  of  a  passenger  car  or  cars  separately  from  freight 
cars — is  sufficiently  specific  to  be  enforced  by  man<l(imus,  and  the 
right  to  compel  its  performance  is  clear  and  undoubted,  unless  such 
right  is  changed  or  modified  by  the  decision  of  the  question,  whether 
the  expense  of  running  such  passenger  car  or  train  would  be  justi- 
fied by  the  amount  of  business  over  the  particular  line  or  road  run- 
ning from  DuQuoin  to  Eldorado.  Counsel  for  appellee  insists  that 
a  railroad  company  is  not  bound  to  provide  a  separate  passenger 
train  when  its  business  is  not  sufficient  to  warranr  it  in  doing  so. 

In  O.  &  M.  Ry.  Co.  vs.  The  People  ex  rel.,  120  111.  200,  where  the 
lower  court  awarded  a  'mandamus  upon  a  petition  to  compel  a  rail- 
road company  £o  repair  and  improve  generally  a  certain  portion  of  its 
road,  and  to  increase  the  trains  thereon,  we  reversed  the  judgment, 
and  held  that  the  writ  was  improperly  issuer!,  upon  the  grounds  that 
the  business  of  the  road  did  not  pay  the  current  expenses,  that  the 
defendant  was  unable  to  perform  the  acts  sought  to  be  enforced,  and 


303 

that  the  requirement  made  upon  the  defendant  was  too  general,  and 
involved  too  much  discretion  as  to  details;  but  it  was  there  said, 
that  a  railroad  company  could  be  compelled  by  mandamus  to  per- 
form any  specific  duty  which  it  owed  to  the  public  as  owner  or  oper- 
ator of  its  road,  such  as,  operating  its  road  as  a  continuous  line  and 
running  daily  trains;  and  the  following  language  was  used:  "It  is 
believed,  however,  no  cause  can  be  found  which,  in  the  absence  of  a 
statutory  requirement,  has  gone  to  the  length  of  holding  that  a  rail- 
way company  may  be  compelled  by  mandamus  to  increase  the  num- 
ber of  trains  on  its  road,  or  to  run  daily  a  particular  number  ofi  trains 
over  its  road;  and  we  are  satisfied  there  is  no  common  law  authority 
for  making  such  an  order.  Of  course,  where  the  charter  of  the  com- 
pany expressly  requires  that  no  less  than  a  given  number  of  trains 
shall  be  run  daily,  the  company  may  be  compelled  by  mandamus  to 
perform  this,  like  any  other  specific  duty  enjoined  by  its  charter,  or 
t)y  other  statutory  provision.  *****  A  company  that  runs 
a  daily  passenger  train  each  way  over  a  road  which  can  not,  with 
proper  management,  be  made  to  keep  up  repairs  and  pay  running  ex- 
penses, certainly  does  as  much  as  the  law  requires  of  it,  so  far  as 
passenger  trains  are  concerned." 

There  are  several  marked  differences  between  the  O.  &  M.  Ry.  Co. 
case  and  the  case  at  bar.  Here  the  appellee  does  not  run  a  daily 
passenger  train  from  DuQuoin  to  Eldorado.  Here  the  charter  en- 
joins a  duty  which  cannot  be  regarded  as  otherwise  than  specific  in 
view  of  the  considerations  already  presented.  Here  it  can  not  be  said 
that  the  appellee  is  financially  unable  to  discharge  the  duty  imposed 
upon  it  by  the  law,  and  which  it  owes  to  the  public.  The  learned 
Circuit  Judge  before  whom  this  case  was  tried  below  says,  in  his  de- 
cision of  it,  that  "the  defendant  railway  company  is  solvent  and  in  a 
prosperous  condition,  its  net  earnings  last  year  being  over  $600,000  00, 
a  net  income  of  about  $3,000.00  per  mile  of  road."  After  a  careful 
examination  we  are  satisfied  that  the  statement  thus  made  is  sus- 
tained by  the  evidence. 

When,  however,  it  is  said,  that  "the  defendant  railroad  company" 
has  a  net  yearly  income  of  $600,000  00,  the  reference  is  to  the  defend- 
ant railroad  company,  of  its  branches  or  leased  roads,  as  well  as  the 
main  stem.  So  far  as  appears  from  this  record,  the  main  road,  owned 
by  appellee  and  operated  under  its  own  charter,  is  the  short  line  run- 
ning from  St.  Louis  to  Belleville;  but  besides  the  leased  roads  run- 
ning from  Belleville  to  DuQuoin  and  DuQuoin  to  Eldorado,  appellee 
aUo  operates  three  other  roads  leased  by  it  for  a  long  term  of  years, 
to-wit:  The  Belleville  &  Carondelet  Railroad,  a  short  road,  about  17 
miles  long,  running  west  from  Belleville  to  East  Carondelet,  on  the 
Mississippi  river;  the  St.  Louis  Southern  Railroad,  about  46  miles 
long,  which  taps  the  said  leased  road  that  runs  from  Belleville  to  Du- 
Quoin, at  Pinckneyville  about  ten  miles  east  or  northeast  of  DuQuoin, 
and  runs  from  Pinckneyville  to  Marion;  and  the  Chicago,  St.  Louis  & 
Pdducah  Railway,  about  52  miles  long,  running  from  Marion  to 
Brooklyn,  on  the  Ohio  river.  The  Balleville  &  Carondelet  road  was 
not  leased  by  appellee  until  June  1,  1893,  and.  therefore,  but  little 
consideration  can  be  given  to  it  in  making  up  the  estimates  of  earn- 


304 

ings  and  expenses  as  found  in  the  record.  The  large  net  income  re- 
ferred to  is  based  mainly  upon  the  earnings  of  the  other  five  roads 
already  mentioned. 

It  is  said  that  the  earnings  of  the  Belleville  &  Eldorado  Railroad, 
running  from  DuQuoin  to  Eldorado,  when  that  road  is  taken  by  itself 
and  considered  separately,  are  not  sufficient  to  justify  the  expense  of 
running  a  separate  passenger  train  from  DuQuoin  to  Eldorado.  But 
why  should  this  branch  be  considered  separately  and  by  itself?  Ap- 
pellee operates  its  main  road  and  its  leased  branches  as  one  system, 
and,  e,s  thus  operated,  the  main  road  and  its  connections  or  branches 
yield  the  net  yearly  income  of  about  $600,000.00,  already  referred  to. 
All  the  divisions,  which  are  entirely  within  the  boundaries  of  the 
State  of  Illinois,  are  mere  feeders  of  the  main  road  running  from 
East  Si.  Louis  to  Belleville,  which  is  also  in  Illinois;  and  all  the 
leased  roads  above  mentioned,  except  that  running  from  East  CJaron- 
delet,  are  feeders  of  the  road  running  from  Belleville  to  DuQuoin. 
The  latter  road  and  the  B  &  E.  R.  R.  are  required  by  the  charter  of 
the  B.  &  E.  R.  R.  Co.,  and  by  the  terms  of  its  lease,  to,  or  agreeable 
with,  appellee,  to  be  operated  as  one  line,  and  such  operation  as  one 
continuous  line  is  merely  the  carrying  out  of  the  original  intention 
of  said  charter,  which  provides  for  the  operation  of  one  continuous 
line  from  Belleville  to  Eldorado.  It  is  no  more  proper  to  select  the 
fifty  miles  from  DuQuoin  to  Eldorada  of  this  compact  network  of 
roads,  all  operated  under  one  system,  and  all  contributing  to  the  sup- 
port of  each  other,  as  being  deficent  in  the  profits  necessary  to  justify 
a  reasonably  safe  and  convenient  operation  of  passenger  traffic,  than 
it  would  be  to  select  any  other  portion  of  the  line  running  from  East 
St.  Louis  to  DuQuoin,  and  charge  that  portion  with  being  deficient 
in  such  profits. 

If  it  be  admitted  that  a  railroad  company  is  not  bound  to  run  a 
separate  passenger  train  when  its  business  is  not  sufficient  to  warrant 
it  in  doing  so,  we  are  confronted  at  this  point  with  the  question, 
whether  this  doctrine  refers  to  the  business  done  by  the  main  road 
and  other  roads  leased  to  it  and  connected  with  it,  all  of  which  are 
operated,  or  are  required  to  be  operated,  as  one  line,  or  whether  it 
can  be  made  to  refer  to  a  small  part  of  the  continuous  line  or  system 
which  happens  to  run  through  a  section  of  country  where  the  freight 
is  not  so  much,  and  the  passengers  are  not  so  many,  as  in  the  case  of 
some  other  part  of  the  line.  We  are  of  the  opinion  that  the  whole 
business  of  the  various  parts  operated  as  one  line  should  be  taken 
into  consideration  where  the  circumstances  are  such  as  revealed  by 
this  record. 

The  duty  required  of  a  railroad  cempany  in  the  matter  of  trans- 
porting passengers  is  the  duty  to  meet  and  supply  the  public  wants. 
Those  wants  are  measured  by  the  business  actually  done,  or  what  it 
could  be  clearly  shown  would  be  done  if  increased  facilities  were 
granted.  That  there  is  here  a  public  demand  for  passenger  service 
is  shown  by  the  fact  that  a  passenger  car  is  attached  to  a  freight 
train,  and  that  passengers  are  invited  to  ride,  and  do  ride,  upon  this 
mixed  train.  It  is  not  contended  that  appellee  is  not  abundantly 
able,  out  of  the  earnings  realized  by  it  from  the  system  controlled  by 


305 

it,  to  pay  the  expenses  of  running  a  passenger  car  separately  from 
freight  cars  over  the  B.  &  E.  R.  R.,  and  thereby  save  the  traveling 
public  from  the  increased  danger  and  inconvenience  of  taking  pas- 
sage on  a  freight  train.  Nor  does  it  appear  that  such  expense  could 
not  be  easily  met  by  the  earnings  of  the  line  running  from  East  St. 
Louis  to  Eldorado  by  way  of  DuQ.uoin.  The  following  language, 
used  by  the  Supreme  Court  of  the  United  States  in  St.  John  vs.  Erie 
Ry.,  22  Wall.,  136,  is  applicable  here: 

"The  business  of  the  road  was  a  unit.  If  it  had  been  disinte- 
grated, as  proposed  by  complainant,  we  apprehend  that  it  would  have 
been  found  that  the  co-relation  of  the  main  stem  and  the  branches 
were  such,  and  that  the  expenses  and  charges  incident  to  the  entire 
business,  and  to  those  of  the  several  parts,  were  so  interwoven  and 
blended  that  an  accurate  ascertainment  of  the  net  profit  of  the  main 
line,  and  any  of  the  auxiliaries  taken  separately  from  the  rest,  would 
have  been  impracticable.  An  ancillary  road  may  be  short  and  yield 
but  little  income,  yet  by  reason  of  its  reaching  to  coal  fields,  or  from 
other  local  causes,  its  contributions  to  other  roads  of  the  series  may 
be  very  large  and  profitable.  Whether  in  this  case  the  partial  com- 
putations insisted  upon  could  or  could  not  have  been  made,  the  pro- 
cess was  one  upon  which  the  company  was  neither  bound  nor  had 
the  right  to  enter," 

The  reports  made  by  appellee  to  the  Railroad  and  Warehouse  Com- 
missioners for  the  years  1891,  1892  and  1893  show  that  it  has  never 
kept  a  separate  account  of  the  actual  earnings  or  expenditures  of 
the  Road  from  DuQuoin  to  Eldorado;  but  has  treated  the  line  from 
East  St.  Louis  to  Eldorado  as  one  continuous  line,  making  no  dif- 
ference in  its  accounts  between  the  divisions  from  DuQuoin  to  Eldo- 
rado and  any  other  portion  of  the  road. 

In  estimating  the  liabilities  of  the  B.  &  E.  R.  R.  Co.,  certain  in- 
debtedness, which  is  in  the  nature  of  preferred  stock,  is  charged  up 
as  a  liability  in  the  accounts  produced  to  show  that  the  obligations 
of  appellee  are  such  as  to  relieve  it  from  the  duty  of  operating  the 
passenger  train  asked  for.  This  is  manifestly  improper,  because  guar- 
anteed or  preferred  stock  is  but  a  dividend  and  not  a  debt,  and  the 
holder  of  a  certificate  for  such  stock  can  have  no  action  against  the 
company  as  for  a  debt,  but  his  right  is  to  a  dividend.  (Taft,  Trustee, 
vs.  H.  P.  &  F.  R.  R.  Co.,  8  R.  1. 310;  St.  John  vs.  Erie  Ry.  Co.  Supra; 
1  Rorer  on  Railroads,  p.  167.) 

The  object  of  incorporating  railroad  companies  is  to  secure  to  the 
the  public  increased  facilities  of  transit  from  point  to  point  and  an 
improved  mode  of  carrying  persons  and  property.  Their  public  char- 
acter is  apparent  from  the  fact  that  they  are  clothed  with  the  power 
of  taking  private  property,  through  the  exercise  of  the  right  of  em- 
inent domain.  Prior  to  the  adoption  of  the  present  constitution,  mu- 
nicipal corporations  were  authorized  to  aid  in  the  construction  of 
railroads  by  subscriptions  for  their  stock.  As  a  matter  of  fact,  Frank- 
lin county,  through  which  the  B.  &  E.  R.  R.  passes,  subscribed 

— 20  O 


306 

$150,000  to  its  construction,  of  which  indebtedness  $37,000  is  still 
outstanding.  Railroads  are  creatures  of  the  law,  and  are  entrusted 
with  the  exercise  of  these  sovereign  powers  to  promote  the  public  in- 
terest, and  are,  therefore,  bound  to  conduct  their  affairs  in  further- 
ance of  the  public  objects  of  their  creation.  The  interest  of  stock- 
holders in  their  profits  is  secondary,  and,  in  the  main,  subsidiary  to 
the  interest  of  the  public.  It  is  in  view  of  their  public  character  that 
the  courts  are  authorized  to  determine  and  enforce  the  public  duties 
enjoined  upon  them.  The  duties  which  they  owe  to  the  State  and 
the  general  public  can  not  be  shirked  or  evaded.  (I.  Wood  on  R. 
R.,  p.  12 ;R.  R.  Commissioners  vs.  P.  &  O.  C.  R.  R.  Co.,  65  Mo.  269.) 
We  do  not  think  that  there  is  here  such  insufficiency  of  business 
or  profits  as  to'present  valid  defense  to  the  application  of  the  people. 
The  writ  of  mandamus  should  issue  as  prayed  for. 

The  judgment  of  the  Circuit  Court  is  reversed,  and  the  cause  is 
remanded  to  that  court  with  directions  to  enter  a  judgment  awarding 
.the  writ  in  accordance  with  the  prayer  of  the  petition. 

Reversed  and  remanded  with  directions. 


307 


COMPLAINTS. 


No.  118. 


Before  the  Railroad  and  Warehouse  Commission   of  the  State   of 

Illinois. 


James  Brown,  of  Dwight,  111., 

v. 
Chicago  &  Alton  Railroad  Company. 


Charging  Extortion. 


Filed  December  14,  1894. 

Hearing  at  Chicago,  March  7  and  8,  1895. 


APPEARANCES: 

For  Petitioner,  PECK,  MILLER  &  STARR. 

For  Respondent,  HON.  WM.  BROWN,  General  Solicitor. 


Statement  of  the  Case  and  Opinion,  Filed  October  1 5,  1895, 
By  W.  S.  CANTRELL,  Chairman. 


This  is  a  complaint  filed  by  Charles  A.  Mallory,  as  the  represent- 
ative of  James  Brown,  a  stock  dealer  of  Dwight,  Illinois,  charging 
the  Chicago  &  Alton  Railroad  Company  with  extortion,  in  this,  that 
the  respondent  charged  the  complainant  the  sum  of  two  dollars 
as  a  terminal  charge,  in  addition  to  the  amount  it  was  allowed  to 
charge  under  the  schedule  of  rates  fixed  by  the  Railroad  and  Ware- 
house Commission,  on  a  car  of  hogs  shipped  by  the  said  Brown  on 
said  railroad  on  September  5,  1894,  from  Dwight,  Illinois,  a  station 
on  the  line  of  the  Chicago  &  Alton  Railroad,  to  Mallory,  Sons  & 
Zimmerman,  live  stock  commission  merchants,  at  the  Union  Stock 
Yards,  in  the  city  of  Chicago. 


308 

There  is  little  controversy  as  to  the  main  facts  in  this  case.  The 
main  and  important  question  involved  in  the  contention,  to-wit:  the 
"two  dollars  terminal''  charge  being  admitted  by  respondent  in  its 
answer  to  the  complaint,  but  there  is  a  most  serious  contention  as  ta 
the  right,  under  the  law,  to  make  this  charge. 

A  case  very  similar  was  decided  by  Judge  Grosscup  in  the  United 
States  Circuit  Court  for  the  Northern  District  of  Illinois,  on  the 
26th  day  of  November,  1894,  in  the  matter  of  the  Union  Trust  Com- 
pany of  New  York  vs.  Atchison,  Topeka  &  Santa  F6  Railroad  Com- 
pany, in  which  Judge  Grosscup  held  that  the  two  dollars  terminal 
charge  imposed  by  the  Atchison,  Topeka  &  Santa  F6  Company  was 
illegal,  and  entered  an  order  that  the  "Receiver  should  discontinue 
the  levying  of  the  additional  charge,  etc."  This  case  is  now  pending 
in  the  United  States  Circuit  Court  of  Appeals. 

It  is  insisted  by  counsel  for  complainants  that  the  case  before  the 
Commission  is  on  all  fours  with  the  Santa  Fe  case,  while  counsel  for 
respondent  does  not  admit  that  the  decision  of  Judge  Grosscup  is  de- 
cisive of  this  case.  If  there  was  nothing  for  the  Commission  to  pass 
on  but  this  question,  it  would  not  give  us  much  concern,  but  we  are 
asked  to  lay  down  a  precedent  which  will  affect  every  railroad  that 
brings  live  stock  into  Chicago.  We  are  asked  by  counsel  for  com- 
plainant to  hold  that  this  terminal  charge  of  two  dollars  per  car  is 
illegal  and  extortionate,  and  that  it  is  a  discrimination  against  the 
live  stock  interests  of  Chicago.  And  while  the  respondent  only  an- 
swers for  itself,  yet  an  order  holding  it  liable  in  this  case  would  have 
the  effect  to  hold  that  all  railroads  delivering  stock  to  the  Union 
Stock  Yards  in  the  city  of  Chicago  are  also  violating  the  law,  because 
they  all  have  been  making  this  terminal  charge  since  June  1,  1894. 
Prior  to  June  1,  1894,  no  charge  was  made  for  this  extra  service,  be- 
cause no  charge  was  exacted  by  the  Union  Stock  Yards  and  Transit 
Company  for  the  use  of  its  tracks,  but  when  the  Union  Stock  Yards 
and  Transit  Company  imposed  upon  the  railroads  using  their  tracks 
a  charge  of  40  cents  per  car  each  way,  then  the  railroad  companies 
added  this  charge  of  two  dollars  per  car,  and  called  it  in  some  in- 
stances a  "terminal  charge"  and  in  others  "switching  charge."  In 
the  case  now  before  us  on  the  statement  of  billing  it  is  called  a  "ter- 
minal charge,"  while  in  the  argument  of  counsel  for  respondent  he 
is  pleased  to  call  it  a  "switching  charge." 

The  evidence  shows  the  respondent  has  the  license  or  right  by  con- 
tract to  use  the  tracks  of  the  Union  Stock,  Yards  and  Transit  Com- 
pany for  the  purpose  of  delivering  stock  at  the  Union  Stock  Yards, 
and  returning  to  their  own  tracks,  but  no  authority  is  shown  by  re- 
spondent by  which  it  is  authorized  to  use  these  tracks  for  switching 
purposes.  It  has  been  the  custom  of  respondents  for  many  years 
when  stock  was  shipped  over  its  line  to  Chicago  to  deliver  it  at  the 
Union  Stock  Yards,  and  we  feel  warranted  in  saying  it  has  been  its 
universal  practice  to  deliver  it  there;  that  it  has  done  so  without 
any  directions  from  the  shipper  other  than  to  have  the  agent  of 
respondent  bill  it  to  Chicago. 


309 

The  evidence  also  shows  that  respondent  maintains  an  office  at  the 
Stock  Yards;  that  it  has  agents,  telegraph  operators,  and  other  em- 
ploye's necessary  to  properly  conduct  their  live  stock  business  at  that 
point;  that  chutes  and  pens  known  and  designated  as  the  "Alton 
chutes"  are  set  apart  for  it  by  the  Stock  Yards  Company;  that  it  de- 
livers stock  there  with  its  own  engine  and  crew,  and  that  the  Union 
Stock  Yards  and  Transit  Company  have  nothing  whatever  to  do  with 
the  handling  of  cars  of  stock  delivered  at  the  Stock  Yards.  To  all  in- 
tents and  purposes,  therefore,  the  tracks  of  the  Union  Stock  Yards  and 
Transit  Company,  when  being  used  by  respondent  within  the  scope 
of  its  license  or  authority,  is  as  much  a  part  of  its  road  as  any  part  of 
its  main  line.  With  this  view  of  the  case  the  question  of  delivery 
beyond  respondent's  line,  and  the  right  to  make  an  additional  charge 
for  such  service  does  not  enter  into  this  case. 

Let  us  assume  that  the  terminus  of  respondent's  road  was  at  a 
point  2|  miles  from  the  city  limits  of  Chicago,  but  that  it  had  a 
depot  or  station  inside  the  city  limits,  within  3  miles  from  its 
terminus,  which  it  reached  by  running  its  trains  over  the  tracks  of 
another  company.  It  accepts  for  shipment  a  carload  of  merchandise 
at  East  St.  Louis  to  be  delivered  at  Chicago,  for  which  it  charges 
the  maximum  rate  allowed  by  law  to  Chicago.  Will  it  be  insisted 
that  under  such  circumstances  an  additional  charge  of  two  dollars  or 
any  other  sum  could  be  legally  made  because  of  the  fact  that  the  last 
2f  or  3  miles  haul  was  made  by  the  respondent  over  tracks  that  did 
not  belong  to  it,  or  which  was  beyond  their  terminus,  and  for  the  use 
of  which  they  had  to  pay  trackage?  We  apprehend  not.  But,  says 
the  learned  counsel  for  respondent,  to  perform  this  service  from 
Brighton  Park  to  the  Stock  Yards  we  are  required  to  pay  for  the  use 
of  the  tracks  in  going  and  returning  from  the  yards.  That  is  true, 
yet  isn't  it  equally  true  in  the  illustration  we  have  given  that  you 
would  also  have  to  pay  for  the  use  of  the  tracks  in  getting  to  and 
from  your  depot  inside  the  city  limits?  It  makes  no  difference  so 
far  as  it  affects  the  right  to  make  the  two  dollars  charge  what  amount 
respondent  is  required  to  pay  for  the  use  of  its  tracks  to  enable  it  to 
discharge  its  duty  to  the  public.  Its  undertaking  was  to  deliver  the 
shipments  in  question  at  the  Union  Yards;  its  duty  was  to  deliver  it 
there.  The  complainant,  Brown,  understood,  as  he  had  a  right  to 
understand  from  the  long  established  custom  of  respondent's,  that  it 
would  be  delivered  there  It  was  in  fact  delivered  there.  The  ser- 
vice rendered  was  but  a  single  service  as  much  as  a  delivery  from 
station  to  station  on  its  main  line,  for  which  the  respondent  had  the 
right  to  charge  the  maximum  rate  allowed  by  the  law  for  the  distance 
this  car  was  actually  hauled  by  it  and  no  more. 

The  fact  that  the  complainant  agreed  by  express  contract  to  pay 
an  additional  sum  of  two  dollars  as  a  switching  charge,  and  did  pay 
it  through  his  representative,  is  no  excuse  nor  defense.  It  was  not 
within  the  power  of  the  respondent  by  contract,  agreement  or  other- 
wise to  burden  the  complainant  with  charges  for  services  it  was 
bound  to  render  without  any  other  compensation  than  the  legal 
charges  for  transportation,  and  such  contract  is  illegal  and  void. 


310 

The  distance  from  Dwight,  the  point  of  shipment,  to  Chicago,  as 
shown  by  respondent's  official  time  table  is  73.6  miles.  The  distance 
from  Dwight  to  Brighton  Park,  the  junction  of  respondent  and  the 
Stock  Yard  tracks,  and  the  point  where  this  shipment  left  the  tracks 
of  the  respondent,  is  68. 5  miles.  The  distance  from  the  junction  of  re- 
spondent at  Brighton  Park  to  the  Stock  Yards,  where  the  car  of  hogs 
was  unloaded,  is  If  miles  Therefore  the  actual  distance  respondent 
hauled  this  stock  was  70J  miles.  The  maximum  allowed  respondent 
for  this  service,  if  there  was  no  terminal  charges,  would  be  $19.55  or 
$1.15  per  thousand  pounds,  while  the  amount  actually  charged,  ex- 
clusive of  terminal  charges,  was  $20.06,  or  $1.80  per  thousand  on  a 
basis  of  75  miles  haul.  While  this  is  prima  facie  a  violation  of  the 
statute,  yet  we  do  not  believe  it  was  intentional,  but  rather  an  error 
of  the  agent  at  Dwight  who  made  the  billing,  and  we  do  not  feel  in- 
clined to  hold  the  respondent  liable  for  it.  If,  however,  we  believed 
that  this  over  charge  was  made  with  the  intention  to  disregard  the 
rate  fixed  by  the  Commission,  we  should  not  hesitate  to  invoke  the 
machinery  of  the  law  and  prosecute  the  respondent  for  it,  however 
trifling  the  amount  involved  may  be. 

The  evidence  of  the  general  manager  of  respondent,  Mr.  C.  A. 
Chappell,  shows,  that  the  respondent  has  a  piece  of  ground  100  feet 
wide  by  200  feet  long  situated  on  their  right  of  way  between  Joseph 
and  Mary  streets  in  the  city  of  Chicago,  that  it  is  fenced;  that  there 
is  a  platform  there;  that  the  yards  will  hold  about  ten  cars  of  stock; 
that  this  enclosure  has  been  there  a  good  many  years,  probably  ten 
years;  but  there  are  no  employe's  of  the  road  there;  no  food  for  live 
stock  there;  no  water  there;  that  there  has  been  no  delivery  of  live 
stock  there  for  two  or  three  years;  that  these  pens  were  put  there  for 
the  accommodation  of  packing  houses  that  were  located  near  there, 
but  that  some  two  or  three  years  ago  these  packing  houses,  or  a  great 
many  of  them,  moved  away,  and  no  live  stock  has  been  delivered 
there  since;  that  these  yards  would  not  take  care  of  their  daily  re- 
ceipts; that  the  custom  of  respondent  is,  when  live  stock  is  consigned 
to  Chicago,  to  deliver  it  to  the  Union  Stock  Yards,  and  that  this  was 
its  practice  prior  to  and  since  June  1,  1894;  that  no  change  in  the 
action  of  live  stock  shippers  had  anything  to  do  with  the  imposition 
of  the  terminal  charge  of  two  dollars. 

The  evidence  further  shows  that  respondent  has  delivered  at  the 
Union  Stock  Yards,  from  1889  to  1894,  inclusive,  131,039  cars  of  live 
stock,  on  an  average  of  about  60  cars  per  day,  Sundays  included.  In 
the  light  of  this  evidence  will  it  be  seriously  contended  that  the  fa- 
cilities at  Joseph  and  Mary  streets  are  either  ample,  suitable  or  suf- 
ficient to  accommodate  the  daily  receipts  of  live  stock  shipped  on  re- 
spondent's road  to  Chicago?  We  do  not  think  so.  As  said  by  Judge 
Grosscup:  "The  fact  that  the  defendant  may  have  some  place  on  its 
line  of  road  in  Chicago  where  stock  could  be  delivered  is  not  abso- 
lutely controlling.  The  understanding  of  the  carrier's  undertaking 
is  derived  from  what  the  carrier  commonly  does.  To  circumvent 
that  understanding  by  a  pretense  of  maintaining  yards  where  they 
are  not  used  might  be  worse  than  bodily  disregarding  the  law  itself.'* 


311 

The  universality  of  delivery  at  a  certain  place  may  be  the  very 
thing  that  constitutes  that  place  the  company's  depot. 

If  the  practice  of  the  carrier  is  of  such  a  character  that  the  public 
is  reasonably  led  to  understand  a  certain  place  to  be  the  company's 
depot,  the  carrier  should  be  held  to  that  understanding.  Terminal 
charges  are  allowed  in  particular  cases  where  the  delivery  is  to  be 
somewhere  else  than  at  the  carrier's  depot,  but  that  does  not  allow 
the  carrier  to  establish  its  depot  at  some  place  oft'  its  line  and  then 
add  terminal  charges. 

The  same  may  be  said  with  reference  to  switching  charges.  There 
is  no  more  reason  or  right  for  adding  an  additional  sum  for  "switch- 
ing charges,"  under  the  facts  of  this  case,  than  there  is  for  making 
the  "terminal  charges."  Therefore,  with  our  view  of  the  law,  it  makes 
no  difference  in  this  case  whether  the  two  dollar  charge  is  called  a 
terminal  or  switching  charge.  Either  is  unwarranted  and  illegal.  It 
is  the  duty  of  the  carrier,  as  said  in  the  Covington  Stock  Yards  case, 
139  U.  S.,  128,  to  furnish  facilities  for  loading,  carrying  and  unload- 
ing live  stock,  and  its  obligation  is  not  discharged  until  the  shipper 
is  furnished  with  proper  facilities  to  unload.  The  carriage  includes 
the  delivery,  and  there  can  be  no  delivery  except  at  such  place  as  is 
suitable  to  the  delivery  of  the  particular  thing  carried."  A  delivery 
of  live  stock  unattended  with  suitable  chutes,  yards,  etc.,  would  be 
no  delivery  at  all. 

There  is  no  question  in  the  minds  of  the  Commission  that  the 
stock  pens  at  Joseph  and  Mary  streets  have  long  since  been  aban- 
doned, and  that  the  respondent  has  adopted  the  Union  Stock  Yards- 
as  its  Chicago  depot  for  delivering  live  stock,  and  that  it  has  no  other 
facilities  ample,  suitable  or  sufficient  in  the  city  of  Chicago  for  that 
purpose. 

We  have  carefully  examined  and  considered  the  authorities  cited 
by  counsel  as  well  as  many  other  cases  not  cited.  We  have  given  the 
evidence  such  weight  as  it  is  entitled  to,  and  have  given  the  case 
that  degree  of  consideration  which  its  importance  demands,  and  we 
have  arrived  at  the  following  conclusions: 

That  the  respondent  is  not  entitled,  under  the  laws  and  facts  in  this- 
case,  to  charge  any  sum  whatever  in  addition  to  the  regular  tariff 
rate  oh  this  shipment. 

We  therefore  find  that  the  allegation  of  complainant's,  in  so  far  as 
it  charges  the  respondent  with  extortion  as  to  the  terminal  or  switch- 
ing charge,  is  true. 

That  the  additional  charge  of  two  dollars  made  by  respondent  in 
this  case,  whether  it  be  called  a  terminal  or  a  switching  charge,  is  a 
violation  of  the  statute,  that  this  charge  is  extortionate,  and  is  there- 
fore illegal  and  void. 

We  further  find  that  the  Union  Stock  Yards  in  the  city  of  Chicago 
has  become  by  usage  the  Chicago  depot  or  station  of  respondent  for 


312 

the  delivery  of  live  stock,  and  that  the  respondent  has  no  other  facil- 
ities, ample,  suitable  or  sufficient,  in  the  city  of  Chicago  that  will  ac- 
commodate the  daily  receipts  of  live  stock  that  are  shipped  over  re- 
spondent's road. 

We  further  find  that  the  service  rendered  in  this  case  is  but  a 
single  service  for  which  the  respondent  is  allowed  to  make  but  a 
single  charge,  and  that  charge  should  not  exceed  the  maximum  tariff 
rate  as  fixed  by  the  Commission,  for  the  actual  distance  the  shipment 
was  hauled  by  respondent. 

OEDER  OF  THE  COMMISSION. 

It  is  therefore  ordered  by  the  Commission,  that  the  respondent,  the 
Chicago  &  Alton  Railroad  Company,  be  and  they  are  hereby  found 
guilty  of  extortion  in  this,  that  they  charged,  collected  and  received 
from  the  complainant,  James  Brown,  the  sum  of  two  (2)  dollars  as  a 
terminal  or  switching  charge,  in  addition  to  the  amount  it  was 
allowed  to  charge  under  the  schedule  of  rates  fixed  by  this  Commis- 
sion, on  a  car  of  hogs  shipped  by  the  said  Brown  on  said  railroad  on 
September  5,  1894,  from  Dwight,  Illinois,  a  station  on  the  line  of  the 
Chicago  &  Alton  Railroad,  to  Mallory  Sons  &  Zimmerman,  live  stock 
commission  merchants,  at  the  Union  Stock  Yards  in  the  City  of 
Chicago,  State  of  Illinois. 

And  it  is  further  ordered  by  the  Commission  that  the  Attorney 
General  be,  and  he  is  hereby,  requested  to  prosecute  the  said  Chicago 
&  Alton  Railroad  Company  for  said  extortion  as  provided  by  statute. 

Adopted  October  15,  A.  D.  1895. 

W.  S.  CANTRELL, 
THOMAS  GAHAN, 

GrEO.  W.   FlTHIAN, 

Attest:  Commissioners. 

J.  W.  YANTIS, 

Secretary. 


313 


Nos.  122-134. 


JOHN  C.  Ross  AND  JOHN  HILL,  JR.,  COMPOSING  THE  WAREHOUSE 
COMMITTEE  BOARD  OF  TRADE  OF  CHICAGO, 

vs. 
GEO.  A.  SEAVERNS  ET  AL. 


Petition   for   Cancellation    and   Revocation   of   Public   Warehouse 

Licenses. 


Filed  March  8,  1895. 

Hearing  at  Chicago,  March  26  and  April  3,  4  and  11,  1895. 


APPEARANCES: 

For  Petitioners,  John  Hill,  Jr.,  Hon.  H.  S.  Robbins. 

For  Respondents,  Hon.  J.  R.  Custer,  Hon.  James  E.  Munroe. 


Respondents  first  filed  a  Plea  to  the  Jurisdiction. 
This  was  overruled  in   the   following   opinion  by  W.   S.  Cantrell, 

Chairman. 


"This  is  a  complaint  filed  by  a  committee  appointed  by  the  Board 
of  Trade  of  the  city  of  Chicago  against  the  defendant  and  twelve 
other  public  elevators  of  Class  "A"  located  in  the  city  of  Chicago, 
charging  each  of  them  with  a  violation  of  the  R.  R.  &  W.  law  by 
.dealing  either  directly  or  indirectly  in  grain  stored  in  their  respect- 
ive warehouses,  by  reason  of  which  the  complainants  ask  that  the 
license  issued  to  the  defendants  be  cancelled.  The  defendants  file  a 
motion  in  each  case  in  the  nature  of  a  plea  to  the  jurisdiction  of  the 
Commission.  The  question  to  be  passed  on  now  is  whether  or  not 
this  Commission  has  the  power  to  investigate  the  charges  contained 
in  the  several  complaints,  and  to  make  any  order  concerning  the 
same. 

"To  determine  this  question,  we  must  have  reference  first  to  the 
constitution,  the  organic  law  of  the  State,  from  which  the  powers  of 
the  Commission  are  primarily  derived.  Article  13,  section  1,  defines 
what  are  public  warehouses. 

"Section  2. — Defines  the  duties  of  proprietors,  managers,  etc.,  of 
such  warehouses. 


314 

"Section  3. — Provides  that  the  owners  of  property  stored  in  any 
warehouse  shall  at  all  times  be  at  liberty  to  examine  not  only  the 
property  stored  but  all  books  and  records  of  such  warehouse  in  re- 
gard to  such  property. 

"Section  4. — Provides  that  all  railroad  companies  and  other  com- 
mon carriers  on  railroads  shall  weigh  or  measure  grain  at  points 
where  the  same  is  shipped  and  shall  receipt  for  the  full  amount  and 
shall  be  responsible  for  the  delivery  of  the  same  at  the  place  of  desig- 
nation. 

"Section  5. — Provides  for  the  delivery  of  such  grain  to  the  con- 
signee or  any  elevator  or  public  warehouse,  provided  the  same  can 
be  reached  by  any  track  owned,  leased  or  used,  or  which  can  be  used 
by  such  railroad  companies,  and  all  railroad  companies  shall  permit 
connections  to  be  made  with  their  tracks  for  this  purpose. 

"Section  6. — Provides  that  'It  shall  be  the  duty  of  the  General 
Assembly  to  pass  all  necessary  laws  to  give  full  effect  to  this  article 
of  the  Constitution,  which  shall  be  liberally  construed  so  as  to  pro- 
tect producers  and  shippers.  And  the  enumeration  of  the  remedies 
herein  named  shall  not  be  construed  to  deny  to  the  General  Assembly 
the  power  to  prescribe  by  law  such  other  and  further  remedies  as 
may  be  found  expedient,  or  to  deprive  any  person  of  existing  com- 
mon law  remedies.' 

"Section  7. — Provides  that  the  General  Assembly  shall  pass  laws 
for  the  inspection  of  grain  for  the  protection  of  producers,  shippers 
and  receivers  of  grain  and  produce. 

"The  Constitution,  of  which  Article  13  is  apart,  was  adopted  May 
13,  1870,  ratified  by  the  People  July  2,  1870,  and  went  into  effect 
August  8,  1870. 

"On  April  13,  1871,  'An  act  to  establish  a  Board  of  R.  R.  &  W. 
Commissioners  and  to  prescribe  their  powers  and  duties  was  passed 
and  approved  and  went  into  effect  July  1,  1871. 

"Section  11. — Of  said  act — Provides  that  said  Commissioners  shall 
examine  into  the  condition  and  management  and  all  other  matters 
concerning  the  business  of  railroads  and  warehouses  in  this  State  so 
far  as  the  same  pertains  to  the  relations  of  such  railroads  and  ware- 
houses to  the  public,  etc.,  and  whether  such  warehouses,  their  officers, 
managers,  etc.,  comply  with  the  laws  of  this  State  now  in  force  or 
which  shall  hereafter  be  in  force  concerning  them.  And  whenever 
it  shall  come  to  the  knowledge,  either  upon  complaint  or  otherwise, 
or  they  shall  have  reason  to  believe  that  any  such  law  or  laws  shall 
have  been  or  are  being  violated,  they  shall  prosecute  or  cause  them  to 
be  prosecuted. 

"Section  12. — Provides  that  said  Commissioners  are  hereby  au- 
thorized to  hear  and  determine  all  applications  for  the  cancellation 
of  warehouse  licenses  which -may  be  issued  in  pursuance  of  any  law 
of  this  State,  and  to  adopt  such  rules  concerning  such  hearing  and 
determination  as  may  from  time  to  time  by  them  be  deemed  proper, 


315 

and  if  upon  such  hearing  it  shall  appear  that  any  public  warehouse- 
has  been  guilty  of  violating  the  law  concerning  the  business  of  such 
public  warehousemen,  said  Commissioners  may  cancel  and  revoke 
the  license  of  such  warehousemen. 

"It  will  be  observed  that  there  is  no  provision  whatever  in  this  act 
requiring  public  warehousemen  to  take  out  a  license,  the  only  refer- 
ence to  the  question  of  license  being  found  in  section  12  last  above 
quoted.  Therefore  we  are  relegated  to  the  following  act  for  author- 
ity to  license  public  warehouses,  'An  Act  to  regulate  public  ware- 
houses, and  the  warehousing  and  inspection  of  grain,  and  to  give- 
effect  to  Article  13  of  the  Constitution  of  this  State.'  This  act  was 
approved  April  25,  1871,  and  in  force  July  1,  1871. 

"Section  1. — Provides  that  the  property  lessee  or  manager,  before 
transacting  any  business,  shall  first  obtain  a  license  from  the  Circuit 
Court  of  the  county  in  which  such  warehouse  is  located — and  that 
such  license  shall  be  revokable  by  the  court  upon  proof  of  the  viola- 
tion of  law. 

"Section  4. — Provides  that  licensee  shall  give  bond. 

"Section  5. — Provides  that  any  person  who  shall  transact  the  busi- 
ness of  a  public  warehouse  of  Class  "A"  without  first  having  obtained 
a  license,  or  who  shall  continue  to  transact  any  such  business  after 
such  license  shall  have  been  revoked,  shall  be  fined. 

"The  question  now  recurs  upon  the  construction  of  the  two  acts 
above  referred  to.  Do  they  conflict?  Is  either  repugnant  to  the 
other? 

"The  statute  should  be  so  construed  that  the  whole,  if  possible, 
shall  stand  when  it  can  be  so  construed  and  applied  as  to  avoid  a 
conflict  with  the  Constitution,  such  construction  must  be  adopted — 
Porter  v.  R.  I.  &  St.  L.  R.  R.,  76  111.,  561. 

"In  the  construction  of  statutes  all  of  the  provisions  are  taken  to- 
gether in  ascertaining  the  intention  of  the  law-giver. — Davis  v. 
Haydon,  3  Scam.,  35. 

"A  section  of  a  statute  will  be  construed  with  reference  to  the  pro- 
visions of  other  sections  relating  to  the  same  subject  and  so  as  to 
leave  all  the  words  in  the  different  sections  in  full  effect  according 
to  their  ordinary  and  usually  accepted  meaning. — Thompson  vs  Bui- 
son,  78  111.  277. 

"In  construing  statutes  we  must  be  governed  by  the  intention  of 
the  Legislature. 

"The  law  does  not  favor  a  repeal  by  implication.  The  earliest 
statute  continues  in  force  unless  the  two  are  clearly  inconsistent 
with  and  repugnant  to  each  other,  or  unless  in  the  latest  statute 
some  express  notice  is  taken  of  the  former,  plainly  indicating  an 
intention  to  repeal  it. 

"Ottawa  vs.  LaSalle  Co.,  12  111.,  339. 

"Where  two  acts  are  seeminly  repugnant  they  should,  if  possible, 
be  so  construed  that  the  latter  may  not  operate  as  a  repeal  of  the 
former  by  implication. 


316 

"Bruce  us.  Schuyler,  4  Gibn.,  221. 

"Town  of  Ottawa  vs.  LaSalle  Co.,  12  111.,  339. 

"So  a  subsequent  statute  which  is  general  does  not  abrogate  a 
former  statute  which  is  particular.  And  a  general  law  does  not 
operate  as  a  repeal  of  a  special  law  on  the  same  subject  passed  at  the 
same  session. 

"Id:  Covington  vs.  City  of  E.  St.  Louis,  78  111.,  548. 

"But  whenever  a  reasonable  construction  can  be  given  by  which 
both  acts  may  stand,  it  will  be  done. 

"Cord  vs.  McCaleb,  69  111.,  314. 
"Chicago  vs.  Quimby,  c)8  111.,  274. 

"While  the  first  act  referred  to  gives  the  Board  of  Railroad  and 
Warehouse  Commissioners  the  authority  to  cancel  or  revoke  the 
license  issued  to  public  warehousmen,  it  does  not  in  express  terms 
provide  for  or  require  a  license. 

"The  second  act,  however,  cures  this  defect  by  requiring  public 
warehousemen  to  take  out  a  license,  and  also  provides  that  the  same 
power  to  whom  is  delegated  the  authority  to  grant  the  license 
shall  have  power  in  a  proper  case  to  revoke  it.  But  construing  both 
acts  together,  there  is  no  question  in  the  minds  of  the  Commission 
but  that  either  the  Circuit  Court  granting  the  license,  or  the  Board 
of  Commissioners,  who  ha*Te  the  power  to  determine  by  investiga- 
tion whether  either  of  said  acts  have  been  violated,  either  has  the 
power  to  cancel  or  revoke  such  licenses.  Their  powers  are  concur- 
rent in  that  respect. 

"We  are  not  unmindful  of  the  general  common  law  docrine  that 
the  authority  to  issue  a  license  carries  with  it  the  power  to  revoke  it, 
but  in  the  case  presented  there  is  special  statute  extending  this 
power  to  the  Board  of  Railroad  and  Warehouse  Commissioners, 
thereby  enlarging  the  common  law,  and  we  are  not  left  to  speculate 
or  surmise  as  to  the  intention  of  the  Legislature  in  enacting  the 
statute,  as  it  is  explicit.  The  constitutionality  of  this  law  has  been 
passed  upon  by  the  Supreme  Court  of  this  State  and  by  the  United 
States  Supreme  Court,  in  the  case  of  Munn  et  al.  vs.  The  People,  in 
which  both  courts  held  the  act  constitutional. 

"The  acts  of  April  13  and  25  both  became  operative  on  the  same 
day,  notwithstanding  they  were  passed  and  approved  on  different 
da3rs;  therefore,  unless  there  is  a  conflict,  repugnance  or  inconsis- 
tency between  the  two  acts,  there  can  be  no  reason  for  holding 
either  void,  but  both  must  be  held  to  be  in  force. 

"For  the  reasons  above  stated,  the  motion  to  dismiss  is  overruled." 

Evidence  was  then  heard  and  the  cases  taken  under  advisement 
by  the  Commission. 

On  the  23d  day  of  September  the  following  opinion  was  filed  and 
-adopted  by  the  Commission. 

Opinion  by  W.  S.  Cantrell,  Chairman: 


817 

"On  March  8,  1895,  John  C.  Ross  and  John  Hill,  Jr.,  members  of 
the  Warehouse  Committee  of  the  Board  of  Trade  of  the  city  of  Chi- 
cago, filed  in  the  office  of  the  Railroad  and  Warehouse  Commission 
of  Illinois,  at  Springfield,  complaints  against  the  following  public 
elevators  or  warehousemen  of  Class  'A'  doing  business  in  the  city 
of  Chicago,  to- wit: 

"  'Geo.  A.  Seaverns,  Chas.  Counselman  &  Co.,  South  Chicago 
Elevator,  Santa  Fe  Elevator,  Central  Elevator,  Keith  &  Co.,  Chicago 
Elevator  Co.,  National  Elevator  &  Dock  Co ,  Chicago  &  Pacific  Ele- 
vator Co.,  A.  C.  Davis  &  Co.,  Chicago  Railway  &  Terminal  Elevator 
Co.,  Armour  Elevator  Co.,  and  Illinois  Trust  &  Savings  Bank, 
charging,  in  substance,  that  each  and  every  one  of  said  elevators 
were  operated  as  public  warehouses  of  Class  'A'  under  a  license 
from  tho  Circuit  Court  of  Cook  county,  and  that  the  said  owners, 
proprietors  or  managers  of  said  respective  warehouses  or  elevators,, 
and  each  of  them,  had  been  guilty  of  violating  the  laws  of  the  State 
of  Illinois,  in  that  they  and  each  of  them  did  either  directly  or  in- 
directly buy,  sell,  own  and  deal  in  grain  stored  in  said  elevators,  and 
that  they  and  each  of  them  mixed  the  grain  owned  by  them  with 
the  grain  of  other  persons  stored  by  them  in  said  elevators.  And 
that  said  warehousemen  were  transacting  their  business  for  private 
gain,  and  not  for  the  public  good,  and  asking  that  the  Railroad  and 
Warehouse  Commission  cancel  and  revoke  the  license  of  each  of  said 
elevators.' 

"These  cases  were  set  down  to  be  heard  at  the  Palmer  House, 
Chicago,  at  the  request  of  the  counsel  representing  complainants- 
and  respondents,  for  April  4,  1895.  On  the  hearing  counsel  for  res- 
pendents  filed  a  motion  in  the  nature  of  a  plea  to  the  jurisdiction  of 
the  Commission,  which  was  overruled.  A  large  number  of  witnesses 
were  introduced  on  the  part  of  the  complainants.  Also  a  large 
amount  of  documentary  evidence.  No  evidence  whatever  was  intro- 
duced by  the  respondents.  Counsel  for  respondents  insisting  that 
the  Commission  had  no  jurisdiction  to  hear  and  determine  the  ques- 
tions involved  in  the  complaints.  There  is  no  controversy  as  to  the 
facts  in  these  cases,  sufficient  evidence  having  been  introduced  to 
make  out  the  charges  contained  in  all  the  cases,  with  the  exception 
of  the  Armour  Elevator  Co.,  A.  C.  Davis  &  Co.,  The  Chicago  Rail- 
way Terminal  Elevator  Co.  and  the  Illinois  Trust  &  Savings  Bank. 
The  facts  being  settled,  then  the  only  remaining  question  to  be  de- 
termined, has  the  Commission  the  power  to  hear  and  determine  the 
charges  contained  in  the  several  complaints,  and  to  make  an  order 
concerning  the  same? 

"The  Constitution,  the  organic  law  of  the  State,  from  which  the 
powers  of  the  Commission  are  primarily  derived,  defines  public 
warehouses  to  be  'All  elevators  or  storehouses  where  grain  or  other 
property  is  stored  for  a  compensation,  whether  the  property  stored 
be  kept  separate  or  not.'  See  Art.  13,  Sec.  1. 

"Section  2  defines  the  duties  of  proprietors,  managers,  etc.,  of  such 
warehouses. 


318 

"Section  3  provides  that  the  owner  of  property  stored  in  any 
warehouse  shull  at  all  times  be  at  liberty  to  examine,  not  only  the 
property  stored,  but  all  books  and  records  of  such  warehouse  in  re- 
gard to  such  property. 

"Section  4  provides  that  all  railroad  companies  and  other  common 
•carriers  on  railroads  shall  weigh  or  measure  grain  at  points  where  it 
is  shipped,  and  receipt  for  the  full  amount,  and  shall  be  responsible 
for  the  delivery  of  the  same  at  the  place  of  destination. 

"Section  5  provides  for  the  delivery  of  such  grain  to  the  consignee 
thereof,  or  any  elevator  or  public  warehouse  to  which  it  may  be  con- 
signed: Provided,  such  consignee  or  the  elevator  or  public  ware- 
house can  be  reached  by  any  track  owned,  leased,  or  used,  or  which 
can  be  used  by  such  railroad  companies,  and  all  railroad  companies 
shall  permit  connections  to  be  made  with  these  tracks  for  this  pur- 
pose. 

"Section  6  provides  that  'It  shall  be  the  duty  of  the  General  As- 
sembly to  pass  all  necessary  laws  to  give  full  effect  to  this  article  of 
the  constitution,  which  shall  be  liberally  construed,  so  as  to  protect 
producers  and  shippers? 

"Section  7  provides  that  the  General  Assembly  shall  pass  laws  for 
the  protection  of  producers,  shippers  and  receivers  of  grain,  etc. 

"The  constitution,  of  which  article  13  is  a  part,  was  adopted  May 
13,  1870,  ratified  by  the  people  July  2,  1870,  and  went  into  effect 
August  8,  1870. 

"On  April  13,  1871,  an  act  to  establish  a  Board  of  Railroad  and 
Warehouse  Commissioners,  and  to  prescribe  their  powers  and  duties, 
was  passed  by  the  General  Assembly  of  the  State  of  Illinois,  ap- 
proved by  the  Governor,  and  went  into  effect  July  1,  1871. 

"Section  1  provides  for  the  appointment  and  defines  the  term  of 
the  Commission. 

"Section  2,  the  qualification  of  the  Commissioners. 

"Section  3,  the  oath  and  bond. 

"Section  4,  the  compensation,  etc. 

"Section  5,  6,  7  and  8  are  applicable  to  railroads  only. 

"Section  9  provides  that  it  shall  be  the  duty  of  every  owner,  lessee 
and  manager  of  every  public  warehouse  in  this  State  to  furnish  in 
writing,  under  oath,  at  such  times  as  the  Railroad  and  Warehouse 
Commissioners  require  and  prescribe,  a  statement  concerning  the 
condition  and  management  of  his  business  as  such  warehouseman. 

"Section  10  provides  that  the  Commissioners  shall  report  to  the 
Governor. 

"Section  11  provides  that  said  Commissioners  shall  examine  into 
the  condition  and  management  and  all  other  matters  concerning  the 
business  of  railroads  and  warehouses  in  this  State  so  far  as  the  same 
pertains  to  the  relation  of  such  railroads  and  warehouses  to  the  pub- 
lic. *  *  *  And  whether  such  railroads  and  warehouses,  their 
officers,  directors,  managers,  lessees,  agents,  etc.,  comply  with  the 
law  concerning  them. 


319 

"Section  12  provides  that  said  Commissioners  are  hereby  author- 
ized to  hear  and  determine  all  applications  for  the  cancellation  of 
warehouse  licenses  which  may  be  issued  in  pursuance  of  any  laws  of 
this  State,  and  for  that  purpose  to  make  and  adopt  such  rules  and 
regulations  as  may  by  them  be  deemed  proper.  And  if  upon  such 
hearing  it  shall  appear  that  any  public  warehouseman  has  been 
guilty  of  violating  any  laws  of  this  State  concerning  the  business  of 
public  warehouses,  said  Commissioners  may  cancel  and  revoke  the 
license  of  said  public  warehouseman. 

"On  April  25,  1871,  there  was  passed  by  the  General  Assembly, 
and  approved  by  the  Governor,  'An  act  to  regulate  public  warehouses, 
and  the  warehousing  and  inspection  of  grain,  and  to  give  effect  to 
article  13  of  the  constitution  of  this  State,'  in  force  July  1,  1871. 

"Section  1  provides  that  public  warehouses  shall  be  divided  into 
three  classes — A,  B  and  C. 

"Section  2  defines  a  public  warehouse  of  class  'A'  to  be  all  ware- 
houses, elevators,  etc.,  in  which  grain  is  stored  in  bulk,  and  in  which 
the  grain  of  different  owners  is  mixed  together,  or  in  which  grain  is 
stored  in  such  a  manner  that  the  identity  of  different  lots  or  parcels 
<jan  not  be  accurately  preserved.  Such  warehouses,  etc.,  being 
located  in  cities  having  not  less  than  100,000  inhabitants.  *  *  * 

"Section  3  requires  the  lessee  or  manager,  before  transacting  any 
business  in  such  warehouse,  to  take  out  a  license  from  the  Circuit 
Court  of  the  county  in  which  such  warehouse  is  located,  and  that 
such  license  shall  be  revocable  by  the  court  upon  proof  of  the  viola- 
tion of  law. 

"Section  4  provides  that  licensee  shall  give  bond  for  the  faithful 
performance  of  his,  duty  as  a  public  warehouseman  of  class  'A.' 

"Section  6  provides  that  such  warehouseman  shall  receive  for 
storage  any  grain  that  may  be  tendered  him,  *  *  *  not  making 
any  discrimination  between  persons. 

"The  two  acts  of  the  General  Assembly  above  referred  to  were 
enacted  for  the  purpose  of  giving  effect  to  article  13  of  the  constitu- 
tion, and  although  both  operative  on  the  same  day,  they  were  passed 
and  approved  on  different  days.  Therefore,  unless  there  is  a  plain 
conflict,  repugnance  or  inconsistency  between  the  two  acts,  there  is 
no  reason  or  authority  for  holding  either  void,  but  both  must  be  sus- 
tained. It  is  insisted  by  counsel  for  respondents  that  these  com- 
plaints should  have  been  filed  in  the  Circuit  Court  instead  of  being 
brought  before  the  Railroad  and  Warehouse  Commission.  While  it 
is  doubtless  true  that  the  Circuit  Court  has  jurisdiction  in  such  cases, 
yet  it  is  equally  true  that  the  same  jurisdiction  is  given  the  Railroad 
and  Warehouse  Commission,  and  parties  complainant  have  the  right 
under  the  law  to  file  their  complaint  either  with  the  Circuit  Court  or 
the  Railroad  and  Warehouse  Commission.  Or,  in  other  words,  they 
have  the  right  to  select  either  forum  in  which  they  may  be  heard. 

"It  is  manifest  that  the  intention  of  the  Legislature  in  passing 
these  acts  was  to  give  more  definite  expression  to  article  13  of  the 
constitution,  and  instead  of  circumscribing  those  for  whose  benefit 


320 

the  law  was  intended,  to- wit:  producers  and  receivers  of  grain,  and 
confining  them  within  narrow  limits,  they  gave  them  the  option  to 
have  their  complaints  heard  either  in  the  Circuit  Court  or  before  the 
Railroad  and  Warehouse  Commission,  the  jurisdiction  of  either  in 
cases  under  these  acts  being  concurrent. 

"It  is  a  well  settled  rule  in  the  construction  of  statutes  that  all  the 
provisions  of  an  act  should  be  taken  together,  and  where  two  acts  on 
the  same  subject  have  been  passed  by  the  Legislature  at  the  same 
session,  they  must  both  stand,  unless  there  is  clearly  a  conflict,  re- 
pugnance or  inconsistency  between  them.  The  law  does  not  favor  a 
repeal  by  implication.  Ottawa  vs.  LaSalle  County,  12  111.,  339.  A 
general  law  does  not  operate  as  a  repeal  of  a  special  law  on  the  same 
subject  passed  at  the  same  session.  Covington  vs.  City  of  East  St. 
Louis,  78  111.,  548;  Chicago  vs.  Quimby,  38  111.,  274;  Cord  vs.  Mc- 
Caleb,  69  111.,  514.  Numerous  authorities  could  be  cited  sustaining 
this  rule  of  construction  of  statutes,  but  it  is  so  well  settled  that 
further  citations  are  unnecessary. 

"Therefore,  the  opinion  of  the  Commission  is  that  it  has  jurisdic- 
tion of  the  subject  matter  and  of  the  parties  in  these  proceedings, 
and  has  the  power  to  hear  and  determine  applications  for  the  can- 
cellation and  revocation  of  the  licenses  of  warehousemen  of  class 
'A'  or  public  warehousemen. 

"The  question  of  jurisdiction  being  disposed  of,  the  next  question 
involved  is,  'Have  the  proprietors,  managers  or  lessees  of  public 
warehouses  the  right,  under  the  law,  either  directly  or  indirectly,  to 
buy  or  sell  grain  and  handle  the  same  through  their  own  public 
warehouses,  and  mix  the  same  with  the  grain  of  their  customers?' 

"This  question  was  before  the  Commission  on  a  former  occasion 
before  any  formal  complaints  had  been  filed,  and  was  answered  by 
the  chairman  of  the  Commission  in  the  negative.  A  thorough  and 
careful  examination  of  the  authorities  on  this  subject  since  the  cases 
herein  were  submitted  confirms  the  position  assumed,  and  we  now 
affirm  it. 

"It  will  be  borne  in  mind  that  all  references  to  warehouses  or  ware- 
housemen in  this  opinion  are  confined  to  warehouses  and  warehouse- 
men of  class  'A.' 

"A  public  warehouseman  for  the  storage -of  grain  is  engaged  in  a 
public  employment  and  occupies  a  position  similar  to  other  public 
servants.  Before  transacting  any  business  in  his  warehouse  he  is 
required  to  obtain  a  license  from  the  Circuit  Court  of  the  county  in 
which  his  warehouse  is  located,  and  to  give  a  bond  in  the  sum  of  ten 
thousand  ($10,000)  dollars  for  the  faithful  discharge  of  his  duties. 
Why  are  these  requirements  necessary?  Because  he  is  dealing  with 
the  public,  and  the  object  of  this  law  is  to  'protect  the  public.'  If  a 
warehouseman  other  than  of  class  'A'  desires  to  buy,  sell  or  store 
grain  on  his  own  account  in  his  private  warehouse,  he  can  do  so 
without  license  or  bond.  But  when  he  opens  a  public  warehouse  he 
is  required  by  law  to  receive  grain  from  all  persons  upon  equal  terms 
and  without  discrimination,  for  which  service  he  is  allowed  a  com- 
pensation. Will  it  be  seriously  contended  for  a  moment  that  the 


321 

Legislature  intended  to  give  him  the  right  to  store  his  own  grain  in 
his  own  public  warehouse  and  mix  it  with  the  grain  of  his  customers, 
and  to  receive  grain  from  himself  and  issue  receipts  to  himself  for 
his  owm  grain,  and  lastly,  charge  himself  for  the  storage  of  his  own 
grain  in  his  own  warehouse?  We  think  that  such  a  contention 
would  not  be  seriously  urged. 

"The  Legislature  has  placed  certain  restrictions  upon  public  ware- 
housemen; it  has  regulated  their  charges  for  storage  so  that  the 
warehouseman  shall  not  practice  extortion  upon  his  customers;  it  has 
prohibited  him  from  mixing  grain  of  different  grades  together,  and 
he  is  not  permitted  to  tamper  with  the  grain  while  in  his  possession 
or  custody.  Such  regulations  would  not  be  necessary  only  for  the 
fact  that  he  is  the  custodian  or  bailee  for  the  owner  of  the  grain 
stored,  and  it  his  duty  to  take  care  of  said  grain  for  the  owner.  The 
object  of  this  law  is  to  protect  producers  and  shippers  against  exor- 
bitant charges  on  the  part  of  warehousemen,  against  unjust  discrim- 
ination and  against  all  species  of  fraud.  Munn  vs.  The  People. 

"Our  decision  therefore  is  that  public  warehousemen  can  not,  un- 
der the  law.  either  directly  or  indirectly,  buy  or  sell  grain  and  handle 
the  same  through  their  own  public  warehouse;  that  to  do  so  is  against 
not  only  the  letter  but  the  spirit  of  the  law;  that  it  is  against  public 
policy;  that  it  is  a  discrimination  against  the  public,  and  that  it  af- 
fords an  opportunity  to  practice  frauds  upon  those  dealing  with  such 
warehouses. 

"An  order  will  therefore  be  made  revoking  and  cancelling  the  li- 
cense of  each  of  the  following  warehouses,  viz:  Geo.  A.  Seaverns, 
South  Chicago  Elevator,  Santa  Fe  Elevator,  Rock  Island  Elevator, 
Central  Elevator,  Keith  &  Co.,  Chicago  Elevator  Co.,  National  Ele- 
vator &  Dock  Co.,  and  the  Chicago  &  Pacific  Elevator  Co. 

Entered  this  23d  day  of  of  September,  A.  D.  1895. 
"  (SEAL]  W.  S.  CANTRELL, 

"Attest:  Chairman. 

"J.  W.  YANTIS,  Secretary." 

The  case  against  the  Illinois  Trust  and  Savings  Bank  was  dis- 
missed by  the  complainants  before  the  hearing. 

The  cases  of  the  Armour  Elevator  Company,  the  Chicago  Railway 
Terminal  Elevator  Company  and  A.  C.  Davis  &  Company  were  con- 
tinued pending  an  application  to  the  Circuit  Court  of  Cook  county 
for  attachments  for  witnesses  who  had  refused  to  appear  and  testify 
before  the  Commission  in  pursuance  of  process  of  subpoena  issued 
by  the  Board  and  served  on  them. 

Upon  the  promulgation  of  the  order  above  referred  to  common 
law  writs  of  certiorari  were  sued  out  of  the  Circuit  Court  of  Cook 
county  in  all  the  cases  in  which  orders  were  made,  except  the  case  of 
the  National  Elevator  &  Dock  Company,  which  has  taken  no  steps 
in  the  matter.  These  cases  were  heard  before  Judge  Tuthill,  of  the 
Circuit  Court  of  Cook  county,  and  taken  under  advisement  by  him. 

—21  O 


322 


No.  136. 

O.  L.  Brining,  of  LeRoy,  Illinois, 

v. 
Cleveland,  Cincinnati,  Chicago  &  St.  Louis  Railroad  Company. 


Refusal  to  Switch  Cars  at  LeRoy. 


Filed  June  1,  1895. 

Hearing  at  Springfield,  September  3,  1895. 


APPEARANCES : 

For  Petitioner,  O.  L.  BRINING. 

For  Respondent,  HON.  H.  J.  HAMLIN,  of  Counsel. 


Opinion  filed  November  7,  1895. 


Opinion  by  GEORGE  W.  FITHIAN,  Commissioner. 


This  is  a  complaint  by  O.  L.  Brining,  of  LeRoy,  Illinois,  against 
the  C.,  C.,  C.  &  St.  L.  R.  R.  Co.,  alleging  a  refusal  to  switch  a  car  of 
coal  at  LeRoy,  Illinois. 

The  proof  in  this  case  shows  that  the  complainant  purchased  a  car 
of  coal  and  had  it  shipped  to  him  over  the  Illinois  Central  Railroad 
to  LeRoy.  While  the  car  was  in  transit  the  complainant  sold  it  to 
Cleary  &  Payne,  to  be  delivered  at  their  place  of  business,  located  on 
a  switch  of  the  C.,  C.,  C.  &  St.  L.  R.  R.  Co.,  at  LeRoy,  Illinois.  The 
car  was  delivered  by  the  Illinois  Central  R  R.  Co.  to  complainant 
at  LeRoy,  and  then  placed  on  the  "Y"  or  transfer  track,  which  was  a 
common  track  used  by  the  trains  of  both  the  Illinois  Central  and  the 
C.,  C.,  C.  &  St.  L.  railroad  companies.  After  the  car  was  placed  on 
the  track  the  complainant  tendered  the  agent  of  the  C.,  C.,  C.  &  St. 
L.  R.  R.  Co.  $2.00,  which  is  the  maximum  switching  charge  fixed  by 
this  Commission,  and  requested  him  to  have  the  car  switched  to 
Cleary  &  Payne  at  their  place  of  business.  The  agent  of  respondent 
refused  to  switch  the  car,  stating  that  the  proper  officers  had  told 
him  not  to  switch  it,  and  that  he  had  been  instructed  to  refuse  to 
switch  cars  to  industries  on  the  Fig  Four  which  came  in  over  the 
Illinois  Central. 


323 

Rule  21  of  this  Commission  fixes  the  maximum  rate  for  switching 
loaded  cars  for  distances  not  exceeding  three  miles  at  $2.00  per  car, 
and  defines  switching  to  be  "the  hauling  of  loaded  cars  from  the  sta- 
tion yards,  side  tracks,  elevators  or  warehouses  to  the  junctions  of 
other  railroads,  when  not  billed  from  stations  on  its  own  road  to  said 
junction,  and  from  the  junctions  of  other  railroads  to  the  stations, 
side-tracks,  elevators  and  warehouses  situated  on  the  tracks  owned  or 
controlled  by  the  company  doing  said  switching;  it  is  that  transfer 
charge  ordinarily  made  for  moving  loaded  cars  for  short  distances  for 
which  no  regular  waybill  is  made,  and  which  do  not  move  between 
two  regularly  established  stations  on  the  same  road." 

The  complainant  testified  on  the  hearing  of  this  case  before  this 
Commission  that  the  respondent  discharged  freight  at  the  place  of 
business  of  Cleary  &  Payne,  the  place  where  he,  Mr.  Brining, 
wanted  the  car  switched,  and  that  it  also  at  times  received  small  con- 
signments of  lumber  and  other  freight  at  that  place. 

When  this  Commission  adopted  Rule  21  it  evidently  was  of  the 
opinion  that  railroad  companies  were  required, -under  the  law,  to 
perform  just  such  service  as  was  demanded  by  the  complainant  of  the 
respondent  railroad  company. 

This  Commission,  as  formerly  constituted,  in  the  case  of  the  Union 
Brewing  Company,  of  Peoria,  Illinois,  vs.  the  Chicago,  Burlington  & 
Quincy  Railroad  Company,  practically  decided  the  question  involved 
in  this  case.  In  that  opinion  the  Commission  said:  "The  principle 
upon  which  the  distinction  should  be  made  between  the  obligation 
to  haul  one  mile  and  the  obligation  to  haul  ten  is  very  difficult  to 
perceive;  and  the  interests  of  a  patron  might  become  as  vitally  in- 
volved  in  the  one  service  as  the  other.  If  one  wishes  a  switching 
service  only,  and  is  willing  to  pay  for  it,  why  can  he  not  command 
the  service?" 

On  the  hearing  of  this  case  it  was  admitted  by  counsel  for  re- 
spondent that  the  maximum  rate  fixed  by  this  Commission  of  $2.00, 
which  amount  was  tendered  by  complainant  to  the  agent  of  re- 
spondent for  switching  this  car,  was  fair  and  reasonable  compensa- 
tion for  the  service. 

On  September  29,  1891,  W.  S.  Weed,  General  Freight  Agent  of 
the  Toledo,  St.  Louis  &  Kansas  City  Railroad,  in  a  communication 
to  the  Railroad  and  Warehouse  Commission,  stated  that:  "At 
Cowden,  111.,  the  O.  &  M.  takes  the  stand  that  while  they  are  required 
to  switch  loaded  cars  from  us  to  be  unloaded  on  their  tracks,  they  do 
not  understand  that  it  is  obligatory  for  them  to  switch  empty  cars  to 
their  side-tracks  to  be  loaded  for  shipment  via  our  line,"  and  asking 
for  a  full  interpretation  of  the  law  as  it  affects  the  matter  of  switch- 
ing at  junction  points. 

On  November  3,  1891,  F.  E.  Fisher,  General  Freight  Agent  of  the 
St.  Louis,  Alton  &  Springfield  Railroad  Company,  in  a  letter  to  the 
Commission  stated  that:  "At  Alton,  111.,  The  Alton  Lime  &  Cement 
Works  are  located  on  our  tracks,  and  can  only  be  reached  by  other 
•companies  through  our  switching  their  cars.  This  company  furnishes 


324 

lime  to  the  Springfield  Gas  Company,  who  have  all  the  shipments 
routed  via  the  C.  &  A.  R.  R.,  notwithstanding  the  fact  that  we 
agreed  and  are  willing  to  meet  any  rate  the  C.  &  A.  R.  R.  makes." 

On  May  26,  1892,  Mr,  Luther  Pennington  filed  complaint  with  this 
Commission  against  the  C.  &  A.  Railroad  Company  for  refusing  to 
switch  cars  delivered  at  Joliet  over  other  lines  to  points  on  the  C.  & 
A.  road,  and  stated  that  in  interviews  with  the  General  Manager,  C. 
H.  Chappell,  that  he  had  been  informed  that  industries  on  the  C.  & 
A.  must  buy  their  coal  from  mines  situated  on  the  C.  &  A. 

All  these  communications  were  referred  by  the  Commission  to 
Hon.  George  Hunt,  then  Attorney  General,  for  his  opinion.  The 
Attorney  General,  on  the  20th  of  June,  1892,  rendered  his  opinion  to- 
the  Commission,  from  which  we  quote  the  following: 

"While  the  questions  submitted  differ  in  some  particulars,  they 
all  relate  to  the  subject  of  switching  cars  by  a  railroad  company  at  a 
junction  point,  which  cars  have  been  or  are  to  be  transported  over  a 
line  of  railroad  controlled  by  another  company. 

"In  my  opinion  it  is  the  duty  of  every  railroad  company  which  ia 
doing  a  general  railroad  business  to  haul  all  cars,  loaded  or  unloaded, 
properly  delivered  to  it  or  required  to  be  hauled  over  its  line  or  a 
part  thereof  for  the  carriage  of  freight  either  for  another  railroad 
company  or  for  a  private  patron. 

"The  railroad  company  can  not  compel  the  public  to  patronize  its 
line  either  by  a  refusal  to  deliver  cars  to  another  railroad,  as  in  the 
"Bluff  Line"  case,  or  by  a  refusal  to  receive  them,  as  in  the  Penning- 
ton case  at  Joliet.  The  patron  may  select  his  carrier,  and  the  railroad 
company  is  bound  to  carry  for  all  those  offering  freight  demanding 
service,  and  can  not  discriminate  by  refusing  to  carry,  on  the  ground 
that  the  commodity  would  come  into  competition  with  like  commod- 
ities or  industries  on  its  own  line,  or  that  it  would  lessen  the  de- 
mand for  commodities  that  might  otherwise  be  carried  over  its  own 
line. 

"So  in  the  matter  inquired  about  by  Mr.  W.  S  Weed,  concerning 
the  duty  of  the  O.  &  M  at  Cowden,  I  am  of  the  opinion  that  it  is  the 
duty  of  the  O.  &  M.  Railway  Company  to  switch  empty  cars,  de- 
livered to  it  at  the  junction,  to  its  side-track,  as  requested,  to  b& 
there  loaded  for  shipment  over  another  line,  and  to  return  them  to 
the  connecting  road,  as  well  as  to  receive  loaded  cars  to  be  unloaded 
at  its  side-track. 

"In  the  'Bluff  Line'  case,  I  think  the  shipper  may  select  the  line 
over  which  he  will  ship  the  lime  referred  to,  and  if  he  prefers  the  C. 
&  A.  line,  it  is  the  duty  of  the  'Bluff  Line'  to  deliver  the  cars  to  the 
C.  &  A.  as  requested,  and  the  'Bluff  Line'  can  not  compel  the  ship- 
ment of  the  lime  over  its  road  by  refusing  to  switch  the  cars  to  the 
other  road. 

"In  the  matter  of  the  complaint  of  Luther  Pennington,  at  Joliet, 
the  statement  is  indefinite  as  to  the  distance  the  cars  had  to  be  hauled 
by  the  C.  &  A.  R.  R.  Co.  The  railroad  company,  however,  it  appears, 
refuses  to  haul  the  cars  furnished  by  Pennington  on  any  terms;  and 


325 

in  this  case,  it  seems  to  me  the  railroad  company  refuses  to  perform 
a  plain  duty.  The  apparent  object  of  the  refusal  is  to  compel  the 
purchaser  of  coal,  to  whom  Pennington  desires  to  deliver  it,  to  pur- 
chase coal  which  shall  be  shipped  over  the  line  of  the  C.  &  A.  Rail- 
road, and  from  a  mine  located  on  that  road.  The  public  can  not  be 
coerced  in  this  matter  to  patronize  any  particular  mina  or  line  of 
railroad.  It  is  the  duty  of  the  company  to  take  the  coal  offered  to 
it  at  its  junction  of  another  road,  to  be  delivered  at  any  point  for  the 
delivery  of  coal  on  its  road.  Whether  the  service  which  it  is  required 
to  perform  is  such  as  to  amount  to  a  'haul,'  or  is  only  'switching,' 
should  be  determined  by  the  Railroad  and  Warehouse  Commission, 
and  a  reesonable  maximum  charge  for  such  service  should  also  be 
fixed  by  that  body. 

"In  the  matter  of  the  Mexican  Amole  Soap  Company  vs.  P.  &  P. 
U.  et  al.,  decided  February  1,  1895,  the  Commission  here  held,  under 
the  facts  in  that  case,  that  one  railroad  company  could  not  be  com- 
pelled, under  the  law,  to  furnish  terminal  facilities  for  another.  The 
question  in  that  case  was  not  whether  one  railroad  company  could 
be  compelled  to  switch  cars  for  another,  but  whether  one  railroad 
company  could  be  compelled  to  furnish  terminal  facilities  for  an- 
other. The  facts  presented  in  the  case  now  under  consideration  are 
•essentially  different  from  the  facts  presented  in  the  case  last  above 
referred  to. 

"The  Commission  is  therefore  of  the  opinion  that  it  was  the  duty 
of  the  respondent  to  perform  the  switching  service  demanded  by  the 
complainant.  But  the  statute  fixes  no  fine  or  penalty  for  refusing  to 
switch  cars,  and  from  a  careful  examination  of  the  statute  it  is  evi- 
dent that  the  prosecutions  which  it  is  incumbent  upon  this  Commis- 
sion to  institute  and  conduct  are  prosecutions  for  those  penalties  de- 
nounced by  the  statute  against  railroad  companies  for  violation  of 
the  several  provisions  of  the  railroad  and  warehouse  law. 

"The  complainant  must  seek  his  remedy  in  a  civil  action  for  dam- 
ages, or  by  writ  of  mandamus  to  compel  the  switching  of  cars." 

At  a  meeting  of  the  Commission  at  Springfield  on  the  7th  day  of 
November,  A.  D.  1895,  the  above  opinion  was  concurred  in  by  the 
Commission,  and  decision  is  rendered  accordingly. 

W.  S.  CANTRELL, 
THOS.  GAHAN, 
Attest:  GEO.  W.  FITHIAN, 

J.  W.  YANTIS,  Secretary.  Commissioners. 


326 


INTERLOCKING. 


No.  19. 


THE  ILLINOIS  CENTRAL  RAILROAD  COMPANY,  Petitioner, 

vs. 
THE  LAKE  ERIE  &  WESTERN  RAILROAD  COMPANY,  Eespondent 


PROTECTION   OF   CROSSING — PAXTON,  ILL. 


Petition  filed  July  1,  1895.  Crossing  viewed  July  2fi,  1895.  Hear- 
ing at  Springfield,  July  30,  1895,  and  following  order  made: 

ORDER   OF   THE   COMMISSION. 

TUESDAY,  July  30,  1895. 

At  a  session  of  the  Railroad  and  Warehouse  Commission  of  the 
State  of  Illinois,  held  at  its  office  in  Springfield,  Illinois,  on  this  day, 
present — W.  S.  Cantrell,  C.  F.  Lape  and  Thomas  Gahan,  Commis- 
sioners, and  J  W.  Yantis,  Secretary — the  following  proceedings  were 
had  in  this  case: 

And  now  this  petition  having  come  on  for  final  hearing  and  de- 
termination before  the  Commission,  this  30th  day  of  July,  1895,  and 
the  Commission  having  considered  the  evidence  taken  herein,  and 
agreements  made  by  the  parties  hereto,  and  the  arguments  made  be- 
fore the  Commission,  and  being  fully  advised  in  the  premises,  doth 
find  that  the  public  good  requires  that  the  crossing  formed  at  Paxton, 
Illinois,  by  the  Illinois  Central  Railroad  Company  and  the  Lake  Erie 
&  Western  Railroad  Company,  be  protected  and  operated  by  an  in- 
terlocking device  or  machine. 

It  is  therefore  ordered  by  the  Commission  that  the  companies,  to- 
wit:  The  Illinois  Central  Railroad  Company  and  the  Lake  Erie  & 
Western  Railroad  Company,  forthwith  proceed  to  protect  said  cross- 
ing by  a  system  of  interlocking  signals  and  switches,  to  be  agreed 
upon  by  the  parties,  with  this  Commission's  approval,  if  the  parties 
are  able  to  agree,  the  cost  of  operation  of  such  interlocking  device  to 
be  divided  upon  the  following  basis: 


327 

First — Each  company  to  pay  the  original  cost  of  all  the  apparatus 
and  mechanism  used  upon  its  own  tracks,  including  all  signals,  de- 
rails, pipe  lines,  wire  lines,  boxing  and  all  connections  in  its  tracks, 
and  also  the  cost  of  putting  all  these  in  ready  for  use,  and  of  main- 
taining the  same  in  good  repair. 

Second — The  cost  of  the  interlocking  machine  proper  and  the  ex- 
pense of  maintaining  the  same  in  good  working  order  to  be  divided 
between  the  companies  in  the  proportion  that  the  levers  used  to  op- 
erate the  appliance  in  the  tracks  of  each  company  bear  to  the  whole 
number  of  levers. 

Third — The  cost  of  the  tower  house  wherein  the  interlocking  ma- 
chine is  housed,  to  be  divided  between  the  companies  in  the  propor- 
tion that  the  levers  used  to  operate  the  appliance  in  the  tracks  of 
each  company  bear  to  the  whole  number  of  levers. 

Fourth — The  expense  of  the  operation  of  the  machine  (i.  e.,  wages 
of  operators)  to  be  divided  equally  between  the  companies. 

It  is  further  ordered  that  this  petition  be  further  held  under  con- 
sideration by  the  Commission  pending  the  efforts  of  petitioner  and 
respondent  to  agree  upon  a  plan  of  interlocking. 

(Signed)  W.  S.  CANTRELL,  Chairman. 

C   F.  LAPE. 

Adopted  July  30,  1895.  THOMAS  GAHAN. 

Attest : 

J.  W.  YANTIS,  Secretary. 


No.  20. 


THE  TERRE  HAUTE  &  INDIANAPOLIS  RAILROAD  COMPANY,  Petitioner, 

vs. 
THE  PEORIA,  DECATUR&  KVANSVILLE  RAILWAY  COMPANY,  Respondent. 


PROTECTION   OF   CROSSING   AT   GREENUP. 


Petition  filed  July  2,  1895.  Crossing  viewed  August  10,  1895. 
Case  came  up  to  be  heard  at  Springfield  September  3,  1895,  and  by 
agreement  the  following  order  was  made  by  the  Commission: 

ORDER   OP   THE   COMMISSION. 

TUESDAY,  September  3,  1895. 

At  a  session  of  the  Railroad  and  Warehouse  Commission  of  the 
State  of  Illinois,  held  at  its  office  in  Springfield,  Illinois,  on  this  day, 
present — W.  S.  Cantrell  and  Geo.  W.  Fithian,  Commisssioners,  and 
J.  W.  Yantis,  Secretary — the  following  proceedings  were  had  in  this 
case: 


328 

And  this  petition  having  come  on  for  final  hearing  and  determina- 
tion before  the  Commission,  this  3d  day  of  September,  1895,  and  the 
parties  having  reached  an  agreement  as  to  the  division  of  the  expense 
of  construction,  maintenance  and  operation  of  the  interlocking  plant 
to  be  installed  at  Greenup,  Illinois,  and  the  Commission  being  fully 
advised  in  the  premises,  doth  find  that  the  public  good  requires  that 
the  crossing  formed  at  Greenup,  Illinois,  by  the  tracks  of  the  Terre 
Haute  &  Indianoplis  Railroad  Company  and  the  Peoria,  Decatur  & 
Evansville  Railway  Company,  be  protected  and  operated  by  an  in- 
terlocking device  or  machine,  and, 

It  is  therefore  ordered  by  the  Commission  that  the  said  companies, 
to- wit:  The  Terre  Haute  &  Indianapolis  Railroad  Company  and  the 
Peoria,  Decatur  &  Evansville  Railway  Company,  forthwith  proceed 
to  protect  said  crossing  by  a  system  of  interlocking  signals  and 
switches,  to  be  agreed  upon  by  the  parties,  with  the  Commission's 
approval,  if  the  parties  are  able  to  agree;  the  cost  of  construction, 
the  expense  of  maintenance  and  the  cost  of  the  operating  of  such  de- 
vice to  be  divided  upon  the  following  basis: 

First — The  Terre  Haute  &  Indianapolis  Railroad  Company  to  pay 
three-fourths  and  the  Peoria,  Decatur  &  Evansville  Railway  Company 
one-fourth  of  the  cost  of  the  plant,  including  all  signals,  derails,  pipe- 
lines, wire  lines,  boxing  and  all  connections  in  the  tracks,  and  also 
the  cost  of  putting  all  these  in  ready  for  use. 

Second — The  Terre  Haute  &  Indianapolis  Railroad  Company  to  pay 
two-thirds  and  the  Peoria,  Decatur  &  Evausville  Railway  Company 
one-third  of  the  cost  of  maintenance  and  operation  of  the  said  plant. 

It  is  further  ordered  that  this  petition  be  further  held  under  con- 
sideration by  the  Commission  pending  the  efforts  of  the  petitioner 
and  respondent  to  agree  upon  a  plan  of  interlocking,  for  which  pur- 
pose they  shall  be  allowed  a  period  of  thirty  days  from  this  date. 

Adopted  September  3,  1895. 

W.  S.  CANTRELL, 
GEO.  W.  FITHIAN, 

Attest:  THOMAS  GAHAN, 

J.  W.  YANTIS,  Secretary.  Commissioners. 


329 


COMPLAINTS. 


No.  138. 


JOSEPH  W.  VANCE  AND  WILLIAM  S.  WASHBURN,  doing  business  under 
the  name  of  the  Egyptian  Coal  Company, 

vs. 
CHICAGO,  PADUCAH  &  MEMPHIS  RAILROAD  COMPANY. 


Overcharge  for  Switching. 


Opinion  by  GEORGE  W.  FITHIAN,  Commissioner. 


The  complaint  filed  by  the  petitioners  allege,  among  other  things, 
that  on  December  31,  1894,  the  defendant  switched  for  complainants 
from  their  mine  known  as  the  Spiller  mine  near  Marion,  to  the  Cairo 
Short  Line  Railroad,  at  Marion,  Illinois,  a  distance  of  less  than  three 
miles,  one  car  of  coal  and  charged  and  collected  from  consignee  there- 
for the  sum  of  five  dollars.  That  said  car  was  billed  and  shipped  to 
W.  B.  Ward,  at  Metropolis,  Illinois.  Also  on  January  2,  1895,  com- 
plainants shipped  to  said  Ward,  at  Metropolis,  Illinois,  one  other  car 
of  coal  from  their  said  mine,  and  another  and  different  car  of  coal  on 
the  31st  of  January,  1895;  and  on  the  19th  day  of  January,  1895, 
they  shipped  one  car  of  coal  to  one  J.  R.  Mayer,  at  Creal  Springs, 
Illinois,  and  another  car  on  the  5th  day  of  February,  1895,  to  the 
-same  consignee;  and  on  the  15th  day  of  January,  1895,  another  car 
to  complainants  at  Marion,  Illinois,  each  of  which  cars  was  received 
by  the  said  Chicago,  Paducah  &  Memphis  Railroad  Company  at  said 
Spiller  mine  and  switched  by  it  to  Marion,  Illinois,  a  distance  of  less 
than  three  miles,  and  delivered  to  the  Cairo  Short  Line  Railroad 
Company  for  shipment  to  its  destination,  except  the  last  mentioned 
car,  which  wus  delivered  to  complainants.  That  said  coal  mine  is 
not  a  station  on  defendant's  road,  that  said  cars  were  billed  from 
Marion,  and  that  the  said  railroad  company  charged  for  hauling  each 
of  said  cars  a  distance  less  than  three  miles  the  sum  of  five  dollars. 

The  evidence  in  this  case  shows  that  Spiller  mine  is  located  about 
two  and  one-fourth  miles  north  of  the  junction  of  the  Cairo  Short 
Line  and  the  Chicago,  Paducah  &  Memphis  Railroads,  at  Marion, 


330 

Illinois,  and  that  it  is  not  a  station  on  the  last  named  railroad.  There 
is  no  station  house  or  agent  of  said  railroad  company  maintained  at 
said  Spiller  mine,  and  the  cars  transported  above  were  billed  from 
Spiller  mine  to  the  junction  of  said  railroads  by  the  railroad  agent 
of  the  Chicago,  Paducah  &  Memphis  Railroad  Company,  at  Marion, 
Illinois. 

The  attempt  was  made  by  the  railroad  company  to  show  that  these 
cars  were  billed  from  Johnston  City,  a  station  on  the  defendant's  road, 
to  Marion,  but  the  Commission  do  not  think  that  the  evidence  sap- 
ports  that  contention.  Rule  21  of  this  Commission  fixes  the  maxi- 
mum rate  for  switching  loaded  cars  for  distances  not  exceeding  three 
miles  at  two  dollars  per  car,  and  defines  switching  to  be  "the  hauling 
of  loaded  cars  from  the  station  yards,  side  tracks,  elevators  or  ware- 
houses, to  the  junction  of  other  railroads  when  not  billed  from  sta- 
tions on  its  own  road  to  said  junctions,  and  from  junctions  of  other 
railroads  to  the  stations,  side  tracks,  elevators  and  warehouses  situ- 
ated on  the  tracks  owned  or  controlled  by  the  railroad  company  doing 
said  switching;  it  is  that  transfer  charge  ordinarily  made  for  remov- 
ing loaded  cars  for  short  distances  for  which  no  regular  waybill  is 
made  and  which  do  not  move  between  two  regularly  established  sta- 
tions on  the  same  road."  The  contention  of  the  railroad  company  is 
that  the  services  performed  in  the  matter  complained  of  were  not 
switching  services,  but  were  regular  hauls  for  which  they  were  en- 
titled to  charge  the  usual  maximum  rates. 

The  opinion  of  the  Commission  is  that  the  service  rendered  was  a 
switching  service;  that  the  distance  was  less  than  three  miles,  and 
that  the  railroad  company  was  only  entitled  to  charge  two  dollars  per 
car,  the  maximum  rate  fixed  by  this  Board  under  Rule  21  for  switch- 
ing cars.  That  the  charge  of  five  dollars  per  car  collected  by  the 
railroad  company  was  in  excess  of  the  rate  fixed  by  this  Board  and 
was  extortionate. 

And  the  Commission  further  finds  that  the  said  Chicago,  Paducah 
&  Memphis  Railroad  Company,  by  collecting  from  the  complainants 
a  rate  in  excess  of  two  dollars  for  each  car,  under  the  statute  rend- 
ered itself  guilty  of  extortion. 

W.  S.  CANTELL, 
THOS.  GAHAN, 
GEO.  W.  FITHIAN. 
Dated  January  7,  A.  D.  1896. 

Attest : 
J.  W.  YANTIS,  Secretary. 


331 


PETITION. 


No.  139. 


Petition  of  Millers'  Association  of  Illinois, 

v. 
Railroad  Companies  in  Illinois.     Filed  December  4th,  1895. 


To  the  Honorable,  the  Board  of  Railroad  and  Warehouse  Commis- 
sioners of  the  State  of  Illinois  : 

We,  the  undersigned,  a  special  committee  appointed  by  the  State 
Millers'  Association  of  Illinois,  respectfully  represent  to  your  honor- 
able body  that  the  number  of  actual  flouring  mills  in  the  State  of  Illi- 
nois is  about  seven  hundred,  said  mills  being  generally  distributed  over 
the  entire  State;  that  their  capacity  is  in  the  neighborhood  of  75,000 
barrels  of  flour  per  day ;  that  the  amount  of  capital  invested  in  these 
properties  is  about  $13,000,000;  that  in  the  conduct  of  their  business 
these  millers  pay  out  over  thirty  million  dollars  yearly,  and  that  it  is 
to-day,  even  in  its  crippled  condition,  the  largest  industry  in  the 
State  of  Illinois. 

With  this  preliminary  reference  to  the  extent  and  importance  of 
the  industry,  we  beg  to  submit  for  your  consideration  these  our  com- 
plaints of  certain  discriminations  and  practices  of  the  railroads  of 
Illinois  in  the  matter  of  rates  on  flour;  which  discriminating  rates 
and  practices  have  compelled  the  closing  down  of  many  mills,  the 
curtailment  of  the  output  of  many  more,  the  surrender  in  great  part 
of  our  home  market  to  the  millers  of  other  States  to  whose  benefit 
these  discriminations  and  practices  inure,  and  such  heavy  impair- 
ment of  the  values  of  milling  property  in  this  State  as  threatens,  if 
not  remedied,  the  destruction  of  the  milling  industry  of  Illinois. 

We  represent,  further,  that  for  many  months  last  year,  and  during 
the  present  year,  the  millers  of  the  State  have  diligently  sought,  by 
a  respectful  presentation  of  their  complaints,  such  as  are  hereinafter 
set  forth,  to  induce  the  Illinois  roads  to  abate  the  discriminations 
and  practices  complained  of,  and  give  them  the  relief  from  these  op- 
pressive and  ruinous  conditions  which  we  are  now  compelled  to  ask 
at  your  hands. 

It  is  not  the  purpose  of  the  millers  to  antagonize  or  embarass  the 
railroads  of  this  State  by  entering  this  formal  complaint  before  the 
State  Commission.  They  desired,  and  very  much  preferred,  to  com- 


332 

pass  an  arrest  and  discontinuance  of  these  abuses  through  an  appeal 
to  the  officials  of  the  roads  interested;  and  in  line  with  this  preference 
an  appeal  was  made  to  them.  Although  two  meetings  were  called 
by  the  roads  last  year  to  take  the  matters  complained  of  under  consid- 
eration, one  meeting  was  a  total  failure  on  account  of  non-attendance 
of  representatives  of  the  roada,  and  at  the  other  meeting  there  was 
but  one  representative  of  these  roads  present,  except  the  agents  at 
the  city  of  Springfield,  at  which  place  the  meeting  was  called,  and 
nothing  whatever  was  done. 

Under  these  circumstances  we  come  before  you  with  the  following 
allegations,  and  ask,  at  your  hands,  such  remedial  action  as,  under 
the  law  and  in  answer  to  our  needs,  you  may  be  able  and  disposed  to 
grant: 

First — That  the  rates  at  present  charged  by  the  railway  companies 
for  the  transportation  of  flour  locally  in  the  State  of  Illinois  are,  in 
most  cases,  the  maximum  freight  rates  named  in  the  Railroad  & 
Warehouse  Commissioners'  schedule. 

Second — That  an  association  of  railroads  known  as  the  "Western 
Freight  Association."  of  which  the  following  Illinois  railroads,  and 
«s  we  believe,  others,  are  members:  The  Chicago,  Burlington  & 
Quincy;  The  Chicago,  Burlington  &  Northern;  The  Chicago  &  North- 
western; The  Chicago  Great  Western;  The  Chicago,  Milwaukee  & 
St.  Paul;  The  Chicago,  Rock  Island  &  Pacific;  The  Illinois  Central; 
The  Iowa  Central,  and  the  Rock  Island  &  Peoria,  have  issued  and 
have  now  in  force  a  tariff  of  rates  known  as  "Joint  Tariff  No.  205," 
which  tariff,  the  millers  are  imformed  by  various  officials  of  Illinois 
roads,  furnishes  virtually  the  basis  of  rates  from  Minneapolis  and 
other  northwestern  points  to  what  are  termed  "group  points"  in  the 
State  of  Illinois.  That,  taking  these  rates  which  are  admittedly 
made  by  the  initial  roads  at  Minneapolis  and  St.  Paul,  the  following 
railroads  of  Illinois,  and  other  Illinois  roads  not  here  mentioned, 
have  issued  tariffs  or  have  accepted  tariffs  issued  by  the  initial  roads, 
naming  rates  from  these  northwestern  points  on  flour  and  wheat  at 
all  stations  in  the  State  of  Illinois:  The  Iowa  Central;  The  Illinois 
Central;  The  Peoria  &  Eastern  (leased  by  the  C  ,  C.,  C.  &  St.  L.;) 
The  Lake  Erie  &  Western;  The  Terre  Haute  &  Peoria  (leased  by 
the  Vandalia;)  The  Peoria,  Decatur  &  Evansville;  The  Chicago, 
Peoria  &  St.  Louis;  The  Chicago,  Burlington  &  Quincy;  The  Chi- 
cago, Rock  Island  &  Pacific;  The  Balimore  &  Ohio  Southwestern; 
The  Toledo,  Peoria  &  Western.  Copies  of  these  tariffs,  so  far  as  we 
have  been  able  to  obtain  them,  are  filed  herewith. 

Third — That  by  reason  of  these  rates  on  flour  charged  by  the  rail- 
road companies  as  shown  in  the  Joint  Tariff  of  the  "Western  Freight 
Association,"  and  in  the  tariff  of  the  Illinois  roads,  either  members 
of  that  association,  or  accepting  the  basis  of  rates  fixed  by  that  asso- 
ciation, the  product  of  the  Minneapolis  and  and  other  Minnesota 
mills  is  delivered  to  hundreds  of  Illinois  points  at  rates  of  freight  less 
than  the  maximum  rates  of  the  Illinois  schedule  in  effect  from  Illi- 
nois milling  points  to  the  same  Illinois  points,  and  thus  the  millers 
of  the  northwest  are  enabled  to  reach  Illinois  territory  over  much 


333 

longer  distances,  at  lower  rates  than  are  charged  Illinois  millers  who 
are  practically  driven  from  their  home  market,  forced  into  idleness, 
or  to  seek  trade  in  other  and  distant  States  to  the  east,  and  in  foreign 
markets  via  the  seaboard. 

Fourth — That  the  "Western  Freight  Association"  referred  to,  to- 
gether wi'th,  or  with  the  sanction  of  Illinois  roads,  accepting  the 
basis  or  rates  fixed  by  said  association,  have  made  without  authority 
of  law  a  division  or  partition  of  the  territory  comprised  within  the 
limits  of  the  State  of  Illinois,  making  application  to  all  stations  in 
one  division  of  the  State  a  rate  of  12f  cents  a  hundred  on  flour;  to 
all  stations  in  another  division  a  rate  of  15  cents  a  hundred;  to  an- 
other and  a  very  large  division  a  rate  of  16  cents  a  hundred ;  to  an- 
other and  a  very  small  division  a  rate  of  17|-  cents  a  hundred;  to  an- 
other division  a  rate  of  18  cents  a  hundred;  and  to  another  division 
a  rate  of  20  cents  a  hundred;  that  said  arbitrary  division  of  the  State, 
shown  on  map  herewith  marked  "A",  if  made  at  the  dictation  of  the 
initial  roads  at  Minneapolis,  which  roads  admittedly  make  the  rates 
of  all  these  divisions  of  the  State  of  Illinois,  is  a  most  ingenious  par- 
tition by  powerful  influences  outside  the  State,  to  accomplish  the 
capture  of  the  home  trade*  of  the  Illinois  millers,  and  drive  them  out 
of  business  entirely,  or  to  other  States,  or  into  the  markets  of  the 
world.  If,  however,  said  partition  was  made  by  the  Illinois  roads, 
under  shelter  of  the  maximum  rate  of  the  Illinois  schedule  on  local 
business,  it  is  a  voluntary  surrender  on  their  part  of  a  home  industry 
into  the  hands  of  an  industry  of  like  character  in  other  States,  which 
emphasizes  all  the  rp.ore  the  complaints  of  the  millers  of  the  State 
that  are  to  follow. 

Fifth — That  while  under  the  tariffs  referred  to,  car-load  flour  is: 
delivered  over  two  Illinois  roads  if  coming  from  Minneapolis  or  com- 
mon points  in  Minnesota  to  hundreds  of  points  in  this  State  from 
four  hundred  to  five  hundred  and  fifty  miles  distant  from  Minneap- 
olis, at  a  rate  of  15  cents  a  hundred,  under  the  present  schedule  of 
rates  in  Illinois,  the  charges  to  any  Illinois  miller  for  a  car-load  of 
flour  to  points  in  this  State  over  two  Illinois  roads  where  the  distances 
aggregate  one  hundred  and  thirty-five  miles  only,  are  over  15  cents 
a  hundred. 

Sixth — That  while  Minnesota  flour  in  car-loads  is  hauled  into  this 
State  a  distance  of  from  four  hundred  to  six  hundred  miles  and  de- 
livered over  two  Illinois  roads  to  hundreds  of  Illinois  points  named 
in  these  tariffs  at  the  rate  of  16  cents  a  hundred,  car-load  flour  from 
Illinois  mills  is  charged  under  the  Illinois  schedule  the  same  or  a 
higher  rate  for  a  distance  of  only  one  hundred  and  fifty  miles;  and 
that  what  is  said  herein  concerning  the  inequalties  of  rates  on  flour 
from  the  northwest  to  15  and  16-cent  points  as  compared  with  rates 
charged  by  Illinois  roads  to  the  millers  of  this  State,  applies  to  those 
districts  taking  17^,  18  or  20  cents. 

Seventh — That  Illinois  roads  are  hauling  car-load  flour  from  Min- 
neapolis and  other  northwestern  points  to  15  and  16-cent  rate  points 
in  this  State,  accepting  as  their  division  of  the  through  rate  for  a 
haul  of  one  hundred  miles  or  more,  3  2-10  cents  a  hundred  in  some 


334 

cases  whereas,  for  hauling  car-load  flour  from  Illinois  mills  an  equal 
distance  on  the  same  roads  the  maximum  charge  is  on  class  "B" 
roads  9.36  cents  a  hundred,  and  on  class  "A"  roads  the  maximum 
charge  is  8.91  cents  a  hundred;  and  whereas,  flour  from  Illinois  mills 
that  reaches  these  points  over  two  Illinois  roads  must  pay  two  locals 
the  sum  of  which  for  a  distance  of  even  twenty  miles  is  three  hun- 
dred per  cent  higher  than  the  cost  of  ths  Minneapolis  miller  of  haul- 
ing a  car-load  of  flour  a  distance  of  one  hundred  miles. 

In  this  connection  the  millers  of  Illinois  insist,  that  while  it  may 
be  true  as  a  rule  that  divisions  of  through  rates  should  not  be  the 
measure  of  local  rates  when  the  discriminations  between  local  and 
through  rates  tax  an  Illinois  industry  with  charges  from  two  hundred 
per  cent  to  three  hundred  per  cent  higher  than  those  accepted  by 
Illinois  roads  on  a  like  product  from  a  neighboring  State,  and 
threaten  the  very  life  of  the  home  industry,  such  rates  are  unreason- 
able, and  warrant  the  millers  of  this  State  in  asking  remedial  action 
at  the  hands  of  the  State  Commission. 

Eighth  -That  Northwestern  millers  are  permitted  by  some  of  the 
Illinois  roads  to  bed  their  flour  in  cars  with  from  one  to  two  tons  of 
bran  or  other  mill  feed  which  pays  no  freight,  thus  cheapening  the 
flour  from  that  section  to  the  Illinois  purchaser  to  the  extent  of  from 
three  to  six  dollars  per  car.  This  practice  not  only  strengthens  the 
competition  the  Illinois  miller  must  meet  on  flour  from  the  north- 
west, but  it  destroys  also  his  trade  in  bran.  The  Illinois  millers  do 
not  allege  that  this  permission  is  openly  granted  to  the  millers  of  the 
northwest  by  the  Illinois  roads,  but  they  do  say  that  agents  of 
the  mills  in  the  northwest  refer  to  this  practice  as  an  inducement  to 
the  Illinois  dealer  in  flour,  and  that  when  the  attention  of  agents  of 
Illinois  roads  has  been  directed  to  the  practice,  apparently  no  effort 
has  been  made  to  discontinue  it,  and  the  practice  still  goes  on.  They 
say  further,  that  agents  of  roads  whose  attention  has  been  called  to 
the  matter  excuse  themselves  from  interference  on  the  ground  that 
it  is  Inter-State  business;  an  admission  by  implication  that  any  vio- 
lation of  rules  that  brings  Inter-State  business  to  the  road  may  prop- 
erly be  ignored,  however  disastrously  such  Inter-State  competition 
may  affect  a  home  industry  of  like  character. 

Ninth — That  it  is  the  practice  of  some  Illinois  roads  to  permit 
flour  from  Minneapolis  and  the  northwest,  billed  as  car-load  flour  at 
car-load  rates,  to  be  distributed  (when  the  car  contains  25,000  pounds) 
at  two  points  in  Illlinois  by  the  payment  of  an  additional  2  cents 
per  hundred,  thus  creating  a  grievous  discrimination  against  Illinois 
millers  on  flour  in  less  than  car-load  lots,  amounting,  as  we  are  pre- 
pared to  show,  on  hauls  of  sixty  and  sixty-five  miles  to  $6  50  a  car, 
and  for  hauls  of  one  hundred,  and  one  hundred  and  five  miles,  to 
more  than  $14.00  a  car.  And  these  differences  against  the  Illinois 
millers  refer  only  to  a  haul  on  a  single  Illinois  road;  whereas,  on  two 
Illinois  roads  the  difference  would  be  so  great  as  to  entirely  prohibit 
the  shipment  of  Illinois  flour  in  less  than  car  loads  in  competition 
with  that  from  the  northwest. 

Tenth — That  a  "milling  in  transit"  rate  is  in  force,  established  and 
permitted  by  the  initial  roads  at  Minneapolis  and  by  the  Illinois 


335 

roads,  under  which  mills  in  Iowa  located  on  the  west  bank  of  the 
Mississippi  river  may  bring  wheat  in  some  cases  a  long  distance 
through  the  State  of  Illinois,  from  Minneapolis  and  other  northwest- 
ern points,  to  their  mills  in  Iowa,  convert  it  into  flour  and  ship  it  to 
any  station  in  Illinois,  except  to  certain  stations  on  the  Wabash.  St. 
Louis  &  Pacific,  and  the  Chicago  &  Alton  roads,  at  the  through  rate 
on  flour  from  Minneapolis  to  Illinois  points;  whereas,  no  Illinois  mill 
can  use  northwestern  wheat  on  a  "milling  in  transit"  rate  except  the 
flour  be  marketed  at  points  east  of  the  Illinois-Indiana  line,  thus 
opening  all  stations  in  Illinois  referred  to  to  Iowa  mills  on  a  "mill- 
ing in  transit"  rate,  while  denying  that  character  of  rate  to  Illinois 
mills  unless  the  product  is  hauled  past  the  homes  of  the  Illinois  con- 
sumers and  marketed  in  other  states  or  in  foreign  countries. 

Eleventh — And  finally  we  allege,  that  two  leading  railroads  in  this 
State  claim  that  they  have  not  only  declined  to  accept  the  divisions 
accorded  by  the  northwestern  lines  on  flour  from  that  territory,  but 
that  they  are  forced  to  make  and  are  making  concessions  from  the 
maximum  Illinois  schedule  to  millers  on  their  lines,  in  order  that 
they  may  compete  with  northwestern  millers  in  Illinois. 

It  is  not  denied  by  the  millers  that  such  concessions  are  now  and 
then  made  to  favored  millers,  but  the  practice  furnishes  in  itself  the 
argument  that  if  concessions  from  the  Illinois  schedule  are  absolutely 
necessary  to  protect  the  home  miller,  and  no  proper  protection  can 
be  given  the  Illinois  miller  under  present  conditions  without  making 
reductions  from  the  schedule  rates,  the  situation  as  herein  described 
can  not  be  ignored  without  sanctioning  the  "pernicious  evil"  of  spec- 
ial rates  so  vigorously  reprobated  in  the  report  of  the  Illinois  Com- 
mission of  1881. 

The  millers  disclaim  any  desire  to  seek  rates  that  work  an  injustice 
to  the  railway  interests  of  the  State,  believing  that  railway  rates,  while 
being  compensatory,  should  be  so  adjusted  as  not  to  work  an  injustice 
to  any  other  business  interests  of  the  State,  and  in  such  manner  as 
to  allow  the  legitimate  and  proper  business  of  the  State  to  be  done 
therein.  They  do  claim,  however,  that  when  Illinois  roads  accept 
on  flour  from  neighboring  states  rates  and  divisions  dictated,  and  in 
many  instances  forced  by  the  officials  of  powerful  initial  roads  con- 
trolling the  distribution  of  a  vast  tonnage,  which  divisions  are  from 
200  per  cent  to  300  per  cent  lower  than  the  maximum  rates  applied 
on  flour  shipped  locally,  they  are  warranted  in  asking  your  interpos- 
ition, to  the  end  that  our  largest  industry  be  not  unreasonably  taxed 
to  provide  revenues  for  Illinois  roads  which  they  fritter  away  in  their 
struggle  for  Inter-State  traffic;  and  for  such  relief  and  protection 
they  will  ever  pray. 

E.  C.  KREIDLE,  President. 
D.  S.  SHELLABARGER. 
S.  W.  GIFT. 

This  case  was  set  for  hearing  several  times  and  postponed  at  re- 
quest of  petitioners,  and  petition  was  finally  withdrawn  by  petitioners 
with  a  statement  that  the  differences  had  been  amicably  adjusted. 


336 


EXTORTION  IN  CHARGE. 


Nos.  140-143  Inclusive. 


Complaint  of  CHICAGO  LIVE  STOCK  EXCHANGE, 

vs. 

CHICAGO  &  NORTHWESTEBN;  C.  B.  &  Q.;  C.,  R.  1.  &  P.,  and  C.  W. 
ST.  P.  RAILWAY  COMPANIES. 


Extortion  in  Terminal  Charge  Made  at  Union  Stock  Yards/^Chicago, 


Filed  December  11,  1895. 
Answer  filed  December  24,  1895. 


These  cases  were  heard  jointly  at  Chicago/January  13,  1896,  and 
respondents  found  guilty  as  charged,  and  Attorney^General  directed 
to  bring  suits  for  the  penalty. 


337 


CROSSINGS. 


THE  CHICAGO  &  ALTON  RAILWAY  COMPANY,  Petitioners, 

vs. 
THE  ALTON  RAILWAY  AND  ILLUMINATING  COMPANY,  Respondents. 


Petition  to  Determine  Place  and  Manner  of  Crossing. 


Petition  filed  April  24,  1896. 
Crossing  viewed  May  8th,  1896. 
Answer  filed  May  8th,  1896. 
Hearing  at  Springfield  May  8th,  1896. 
Opinion  filed  May  llth,  1896. 


OPINION  OF  THE  COMMISSION. 


By  W.  S.  Cantrell,  Chairman. 

This  is  a  petition  of  the  Chicago  &  Alton  Railroad  Company,  ask- 
ing the  Commission  to  prescribe  the  place  where  and  the  manner  in 
which  the  respondent,  the  Alton  Railway  and  Illuminating  Com- 
pany, may  be  permitted  to  cross  with  its  track  kthe  track  of  peti- 
tioner in  the  city  of  Alton. 

The  petition  avers  that  the  petitioner  is  a  railroad  corporation  or- 
ganized and  doing  business  under  the  laws  of  the  State  of  Illinois, 
and  owning  and  operating  a  railroad  between  the  city  of  Chicago,  in 
the  State  of  Illinois,  and  the  city  of  East  St.  Louis,  in  said  State; 
that  its  main  track  runs  through  the  city  of  Alton,  in  the  county  of 
Madison,  in  said  State;  that  it  has  legal  authority  from  the  said  city 
of  Alton  to  run  its  railroad  and  its  several  trains  upon  and  overPiasa 
street  in  said  city;  that  said  street  is  66  feet  in  width  and  46  feet  be- 
tween the  curbs;  that  the  track  of  petitioner  is  4  feet  8£  inches  in 
width;  that  the  cars  of  petitioner  range  in  width  from  10^  to  11  feet; 
that  that  portion  of  Piasa  street  between  Second  and  Third  streets  is 
at  the  foot  of  a  very  heavy  grade  amounting  to  90  foot  a  mile  rise, 
—22  O 


338 

and  that  it  is  very  difficult  to  draw  trains  of  petitioner  up  said  grade, 
or  to  control  them  when  coming  down  same;  that  the  Alton  Railway 
and  illuminating  Company  is  a  railroad  corporation  organized  under 
the  laws  of  the  State  of  Illinois,  and  pretends  to  have  a  franchise 
from  the  city  of  Alton  to  construct  and  operate  its  line  of  railway 
from  a  point  on  Second  street  to  a  point  on  Third  street  in  the  city 
of  Alton,  along  the  east  side  of  petitioner's  track  in  Piasa  street,  and 
intends  to  build  its  track  across  the  track  of  petitioner  at  the  inter- 
section of  Third  and  Piasa  streets  at  the  foot  of  said  90  foot  grade; 
that  said  proposed  crossing,  if  made,  would  be  a  very  dangerous  one 
to  the  lives  and  limbs  of  passengers  and  employes  of  both  the  peti- 
tioner and  the  Alton  Railway  and  Illuminating  Company;  that  such 
crossing,  if  made  at  the  place  and  in  the  manner  proposed  by  the 
said  Alton  Railway  and  Illuminating  Company,  will  necessarily  im- 
pede and  endanger  the  travel  or  transportation  upon  petitioner's 
railroad.  Petititioner  therefore  objects  to  said  company  crossing  its 
track  at  grade  at  the  place  so  selected  by  it,  and  asks  the  Commis- 
sion to  prescribe  the  place  where  and  manner  in  which  said  crossing 
shall  be  made,  having  due  regard  to  the  safety  of  life  and  property. 

The  respondent  admits  in  its  answer  the  organization  of  petitioner; 
that  it  owns  and  operates  a  railroad  as  averred;  its  occupancy  of 
Piasa  street  by  the  authority  of  the  city  of  Alton;  the  width  of  said 
street  and  the  width  of  its  cars,  but  denies  that  the  grade  on  Piasa 
street  between  Second  and  Third  streets  is  a  heavy  grade,  and  that 
it  is  very  difficult  to  draw  trains  up  said  grade  or  to  control  them 
going  down  the  same.  Denies  that  it  is  a  railroad  corporation,  but 
avers  that  it  is  organized  under  the  general  laws  of  the  State  of  Illi- 
nois, and  that  the  object  of  incorporation  was  and  is  to  furnish  elec- 
tric light,  heat  and  power  and  to  maintain  and  operate  electric  street 
railways;  that  it  has  now  in  operation  in  the  city  of  Alton  two  lines 
of  electric  railways,  and  that  it  has  now  in  process  of  construction  a 
third  line  extending  from  the  city  hall  in  the  city  of  Alton  to  the 
village  of  North  Alton ;  avers  its  authority  by  ordinance  of  said  city 
to  construct  its  line  along  and  over  Piasa  street,  Third  street  and 
other  streets  in  said  city;  admits  that  it  intends  and  proposes  to 
build  its  said  electric  railway  track  on  Piasa  street  along  the  east 
side  of  the  track  of  the  Chicago  &  Alton  Railroad  Company,  and  in- 
tends to  cross  said  track  of  said  Chicago  &  Alton  Railroad  Company 
at  the  intersection  of  Third  and  Piasa  streets.  Denies  that  said 
crossing  will  be  a  dangerous  one  either  to  employes  or  patrons  of 
either  company,  and  that  the  crossing  would  not  injure  the  track  of 
the  petitioner.  Denies  that  it  intends  to  construct  its  crossing  over 
the  track  of  petitioner  in  such  manner  or  place  as  will  impede  and 
endanger  travel  or  transportation,  but  avers  that  said  crossing  will 
be  at  a  proper  and  suitable  place,  and  will  be  built  and  constructed 
in  such  manner  as  to  be  as  little  dangerous  to  life,  limb  or  property 
as  any  crossing  could,  would  or  might  be,  and  that  the  crossing  pro- 
posed by  it  will  be  proper  and  safe.  Admits  that  it  will  be  at  grade 
but  denies  that  there  is  any  valid  or  legal  objection  to  said  crossing 
at  grade,  and  that  the  petitioner  has  any  right  under  the  law  and 
facts  to  make  objection  to  said  crossing.  The  respondent  joins  in 


339 

the  request  of  the  petitioner  that  the  Commission  view  the  ground. 
Avers  that  the  city  council  of  the  city  of  Alton  having  granted  a 
franchise  to  it  to  lay  and  construct  its  tracks  in  Piasa  street,  it  there- 
by acquired  the  right  to  cross  the  track  of  said  petitioner;  therefore 
the  Railroad  and  Warehouse  Commission  has  no  jurisdiction  to  pre- 
vent said  crossing  at  grade  or  to  prescribe  the  place  where  said  cross- 
ing should  be. 

The  question  of  the  jurisdiction  of  the  Railroad  and  Warehouse 
Commission  to  hear  and  determine  this  case  is  raised  by  the  answer 
of  respondent.  It  is  insisted  that  the  respondent  is  not  organized 
under  the  general  railroad  law,  but  that  it  is  incorporated  under  the 
general  corporation  act;  that  paragraph  102,  section  38,  of  chapter 
114,  R.  S.,  and  paragraph  133,  section  2,  of  chapter  114,  R.  S.,  ex- 
pressly excepts  street  railroads  from  the  operation  of  the  respective 
acts.  This  contention  is  not  only  tenable,  but  is  correct,  and  if  this 
proceeding  was  under  either  of  the  acts  referred  to  we  would  have 
no  hesitancy  in  dismissing  the  petition,  but  this  petition  is  brought 
under  the  act  entitled  "An  act  in  relation  to  the  crossing  of  one  rail- 
way by  another,  and  to  prevent  danger  to  life  and  property  from 
grade  crossings.  Approved  May  27,  1889;  in  force  July  1,  1889," 
which  provides,  "that  hereafter  any  railroad  company  desiring  to 
cross  with  its  track  the  main  line  of  another  railroad  company  shall 
construct  the  crossing  at  such  place  and  in  such  manner  as  will  not 
unnecessarily  impede  or  endanger  the  travel  or  transportation  upon 
the  railway  so  crossed.  If,  in  any  case,  objection  be  made  to  the 
place  or  mode  of  crossing  proposed  by  the  company  desiring  the 
same,  either  party  may  apply  to  the  Board  of  Railroad  and  Ware- 
house Commissioners,  and  it  shall  be  their  duty  to  view  the  ground 
and  give  all  parties  interested  an  opportunity  to  be  heard.  After 
full  investigation,  and  with  due  regard  to  safety  of  life  and  property, 
said  board  shall  give  a  decision  prescribing  the  place  where  and  the 
manner  in  which  said  crossing  shall  be  made." 

There  is  nothing  in  this  act  which  excepts  street  railroads.  The 
first  question  for  our  consideration  is,  does  the  case  fall  within  the 
provisions  of  this  statute?  In  order  to  determine  this  we  must  as- 
certain whether  or  not  the  Alton  Railway  and  Illuminating  Company 
is  a  railroad  company. 

In  1859  the  Supreme  Court  of  Illinois,  in  the  case  of  Moses  et  al. 
v!  P.,  F.  W.  &  C.  R.  R.  Co.,  21  III.,  523,  in  passing  upon  the  right  of 
the  appellants  to  enjoin  appellee  from  laying  its  tracks  in  Beach 
street,  in  the  City  of  Chicago,  uses  this  language:  "Cars  upon  street 
railroads  are  now  generally,  if  not  universally,  propelled  by  horses, 
but  who  can  say  how  long  it  will  be  before  it  will  be  found  safe  and 
profitable  to  propel  them  with  steam  or  some  other  power  besides 
horses?  Should  we  say  that  this  road  should  be  enjoined,  we  could 
advance  no  reason  for  it  which  would  not  apply  with  equal  force  to 
street  railroads." 

Again,  in  the  case  of  the  City  of  Chicago  v.  Evans  et  al.,  24  111.,  56, 
the  Supreme  Court  in  passing  upon  the  right  of  horse  railways  to 
unite  their  roads  and  make  running  arrangements  with  each  other 


340 

(under  the  act  of  February  12,  1855,)  says:  "The  act  in  terms  ap- 
plies  to  all  railroads  organized  or  incorporated  under  or  which  may 
be  incorporated  or  organized  under  the  authority  of  the  laws  of  this 
State."  This  language  is  manifestly  sufficiently  comprehensive  to 
embrace  horse  railways  as  well  as  railroads  whose  cars  are  propelled 
by  steam  or  other  power,  as  well  as  roads  authorized  to  transport  pas- 
sengers and  freight  by  other  power.  The  language  of  the  enactment 
embraces  all  roads  then  organized,  as  well  as  those  which  might 
afterwards  become  so,  and  the  act  makes  no  distinction  or  reserva- 
tion as  to  the  character  of  the  railroad.  The  members  of  the  Gen- 
eral Assembly  were  fully  aware  that  these  various  roads  existed,  and 
if  any  roads  answering  either  description  were  not  designed  to  be 
embraced  they  would,  it  appears  to  us,  have  limited  the  operation  of 
the  act  so  as  to  have  excluded  them.  Horse  city  railways  unques- 
tionably fall  within  the  description  of  the  class  of  subjects  of  which 
they  were  legislating.  They  are  in  every  sense  of  the  term  "rail- 
roads." 

The  Supreme  Court  of  this  State,  in  the  case  in  24  111.,  above  citedr 
says  that  "Horse  railroads  are  in  every  sense  of  the  term  'railroads.'  " 
That  the  language  of  the  act  of  1855  is  sufficiently  comprehensive  to 
embrace  horse  railways  as  well  as  railroads  whose  cars  are  propelled 
by  steam  or  other  power.  If  this  opinion  states  the  law  correctly, 
then  a  company  owning  or  operating  a  street  car  line  propelled  by 
horses  or  by  any  other  power  is  a  railroad  company,  and  as  such  is 
subject  to  the  provisions  of  the  act  known  as  the  Crossing  Act,  above 
cited,  whether  such  street  railroad  is  incorporated  under  the  general 
railroad  act  or  the  general  corporation  laws  of  this  State.  Having 
disposed  of  the  question  of  jurisdiction,  the  next  question  is  as  to 
the  proper  place  where,  and  manner  in  which,  the  crossing  shall  be 
made.  There  is  little  conflict  in  the  evidence  as  to  the  facts.  It  is 
admitted  by  the  respondents  that  all  grade  crossings  are  more  or 
less  dangerous,  but  in  the  absence  of  any  evidence  on  this  point  ex- 
perience teaches  us  that  all  grade  crossings,  whether  of  steam,  cable, 
electric  or  horse  railroads,  are  fraught  with  danger  even  when  pro- 
tected by  gates,  bars  or  interlocking  devices,  and  that  however  care- 
ful their  management  may  be  collisions  are  not  infrequent. 

It  is  said  that  the  ordinance  throws  around  the  proposed  crossing 
at  Third  and  Piasa  streets  all  the  safeguards  which  are  necessary  to 
protect  the  passengers  of  the  respective  roads,  as  well  as  their  em- 
ployes; but  common  experience  has  shown  that  howsoever  strict  may 
be  the  rules  and  regulations  thrown  around  employe's,  and  however 
much  vigilance  may  for  a  time  be  used  by  them,  that  they  have 
proven  ineffectual  to  protect  the  lives  of  the  passengers  upon  the 
respective  roads  and  of  the  employe's  themselves.  The  employe's  be- 
coming accustomed  to  the  crossings,  look  upon  them  as  common 
affairs  and  their  vigilance  is  often  relaxed  and  accidents  occur.  And, 
again,  allowance  must  be  made  for  the  inattention  and  negligence  of 
employe's,  howsoever  carefully  they  may  be  selected  and  however 
stringent  may  be  the  rules  under  which  they  act.  We  know  that 
they  do  relax  in  vigilance,  and  serious  accidents  occur  therefrom; 
and  it  therefore  becomes  our  duty,  under  the  statute  of  this  State,  in 


341 

so  far  as  may  be  done,  to  put  it  out  of  the  power  of  the  employes  to 
bring  about  accidents  by  negligence  and  omission  of  care.  The  safe- 
guards of  the  ordinance,  we  apprehend,  would  not  prove  efficient  to 
prevent  accidents  at  the  proposed  crossing.  Yet  there  are  conditions 
which  practically  preclude  any  other  than  grade  crossings,  and  when 
such  conditions  exist,  the  only  safeguard  that  can  be  employed  is  to 
reduce  the  danger  to  a  minimum  by  requiring  such  safety  devices  as 
have  been  discovered.  But  it  must  be  borne  in  mind  that  the  ingenu- 
ity of  man  has  not  yet  found  any  device  that  will  absolutely  prevent 
all  danger  at  grade  crossings.  The  nearest  approach  to  it  is  to  inter- 
lock such  crossings.  The  conditions  at  the  proposed  crossing  at 
Third  and  Piasa  streets  are  of  such  a  character  that  we  feel  that  the 
danger  of  life  would  be  greatly  enhanced,  for  the  reason  that  said 
crossing  would  be  very  near  the  foot  of  the  90-foot  grade,  and  at  a 
point  where  the  evidence  shows  that  the  trains  of  the  petitioner  com- 
ing down  this  grade  have,  on  different  occasions,  become  unman- 
ageable and  have  gotten  beyond  the  control  of  the  trainmen,  and 
-were  stopped  quite  a  distance  south  of  Third  street. 

Another  objection  to  this  crossing,  and  an  additional  reason  why 
it  is  a  dangerous  one,  is  that  the  motorman  or  conductor  could  not 
see  a  train  or  engine  on  petitioner's  road  approaching  this  crossing 
from  the  south  but  a  very  short  distance,  on  account  of  a  sharp  curve 
in  the  petitioner's  track  just  south  of  Second  street.  This  last  ob- 
jection is  obviated  by  the  crossing  prescribed  by  the  Commission,  as 
a  good  view  of  the  petitioner's  tracks  can  be  had  for  about  one-half 
mile  north  and  several  hundred  feet  south,  so  that  the  danger  of  a 
collision  at  this  crossing  is  minimized  as  compared  with  the  proposed 
crossing  at  Third  street.  It  would  be  far  better  for  both  roads  and 
for  the  public  were  the  physical  conditions  such  as  to  admit  of  an 
overhead  crossing,  but  they  are  not;  therefore  we  can  only  use  the 
authority  conferred  on  us  by  law  to  throw  all  the  safeguards  in  our 
power  around  this  crossing  so  the  lives  of  passengers  and  employe's 
may  be  protected.  This  we  have  done  in  prescribing  the  place  and 
manner  of  this  crossing.  While  it  is  true  that  interlocking  it  will 
impose  on  the  respondent  additional  expense,  yet  a  question  of  ex- 
pense should  not  enter  into  the  case  where  the  lives  of  the  public  or 
the  employe's  of  the  petitioner  and  respondent  are  involved. 

For  the  reason  above  stated  we  hold  that  the  Commission  has  ju- 
risdiction in  this  case  to  prescribe  the  place  and  manner  of  crossing. 

It  is  therefore  ordered  by  the  Commission  that  the  respondent,  the 
Alton  Railway  and  Illuminating  Company,  have  leave  to  cross  with 
its  track  at  grade  the  track  of  the  Chicago  &  Alton  Railroad  Com- 
pany at  the  intersection  of  Piasa  street  with  Second  street  in  the  city 
of  Alton. 

It  is  further  ordered  that  the  crossing  of  tracks  to  be  thus  formed 
be  protected  by  a  system  of  interlocking  signals  to  be  agreed  upon 
by  the  parties,  with  this  Commission's  approval,  if  the  parties  are 
able  to  agree.  The  cost  of  construction  and  the  expense  of  mainte- 
nance of  such  device  shall  be  paid  for  by  the  Alton  Railway  and 
Illuminating  Company,  as  provided  by  statute,  and  it  is  further 


342 

ordered  by  the  Commission  that  the  cost  of  the  operation  of  said  in- 
terlocking device,  the  said  Alton  Railway  and  Illuminating  Company 
shall  pay  one-half,  and  said  Chicago  &  Alton  Railroad  Company  shall 
pay  one-half.  And,  inasmuch  as  the  statute  only  directs  the  Rail- 
road and  Warehouse  Commission  to  prescribe  by  order  a  plan  of  the 
interlocking  in  case  the  parties  are  unable  to  agree;  therefore  it  is 
further  ordered  that  this  petition  be  further  held  under  considera- 
tion by  the  Commission  pending  the  efforts  of  the  petitioner  and  re- 
spondent to  agree  upon  a  plan  of  interlocking. 

Adopted  May  11,  A.  D.  18%. 

W.  S.  CANTRELL, 
GEO.  W.  FITHIAN, 
Attest:  THOS.  GAHAN, 

J.  W.  YANTIS,  Commissioners, 

Secretary. 


Chicago  &  Alton  Railroad  Company 

vs. 
Alton  Railway  and  Illuminating  Company. 


Petition  for  the  crossing  of  the  said  Alton  Railway  and  Illuminating; 
Company  over  the  tracks  of  the  Chicago  &  Alton  Rail- 
road Company  in  Alton,  Illinois. 


And  now  on  this  29th  day  of  May,  1896,  come  again  the  parties  to 
the  above  entitled  proceeding,  upon  the  petition  of  the  Alton  Rail- 
way and  Illuminating  Company  for  a  modification  of  the  order  here- 
tofore made,  to-wit:  on  the  llth  of  Maj,  1896,  and  the  said  cause 
coming  on  to  be  heard  on  said  petition,  and  it  appearing  to  the  Com- 
mission that  the  parties  hereto  have  reached  an  agreement  as  to  the 
mode  of  protecting  the  crossings  to  be  made  by  the  Alton  Railway 
and  Illuminating  Company  over  the  tracks  of  the  Chicago  &  Alton 
Railroad  Company,  and  it  appearing  that  the  point  hereinafter  men- 
tioned, to-wit:  a  point  fifty-one  (51)  feet  south  of  the  property  line 
of  Second  street,  is  less  objectionable  as  a  place  of  crossing  than  the 
point  heretofore  ordered,  and  it  also  appearing  that  the  Chicago  & 
Alton  Railroad  Company,  while  not  waiving  its  objections  to  any 
crossings  at  grade,  prefers  that  the  crossing,  if  made  at  all,  should 
be  made  at  said  point,  fifty- one  (51)  feet  south  of  the  property 
line  of  Second  street,  it  is  therefore  ordered  and  adjudged  that 
the  order  of  the  llth  of  May,  A.  D.  1896,  be  modified  in  respect  of 
the  place  of  crossing,  and  also  in  respect  of  the  manner  of  protecting 
said  crossing;  and  it  is  also  ordered  that  the  Alton  Railway  &  Illum- 
inating Company  have  permission  to  cross  the  tracks  of  the  Chicago 
&  Alton  Railroad  Company  at  grade  at  a  point  fifty-one  (51)  feet 


343 

south  of  the  south  property  line  of  Second  street  upon  condition 
that  the  said  Alton  Railway  and  Illuminating  Company  protect  said 
crossing  by  placing  in  their  tracks  the  derailing  device  mentioned  in 
the  petition  herein  filed  this  day,  and  upon  condition  that  it  forever 
operate  and  maintain  said  protection  in  accordance  with  the  petition 
herein  made  as  follows:  Said  device  shall  be  placed  in  the  tracks  of 
said  Alton  Railway  &  Illuminating  Company,  and  of  said  company 
only,  and  it  shall  be  placed  on  both  sides  of  the  track  of  the  Chicago 
&  Alton  Railroad  Company  at  a  distance  of  fifty  feet  therefrom,  and 
that  said  device  shall  be  such  as  will  keep  the  tracks  of  the  Alton 
Railway  &  Illuminating  Company  open  at  all  times  except  when  a 
conductor  or  switchman  of  said  Alton  Railway  &  Illuminating  Com- 
pany shall  close  it  for  the  purpose  of  making  a  crossing. 

A  plat  of  the  place  of  crossing  and  a  plan  of  the  proposed  crossing 
and  derailing  device  are  herewith  filed  and  made  a  part  of  this  order; 
and  it  is  ordered  that  the  said  Alton  Railway  &  Illuminating  Com- 
pany shall  now  and  at  all  times  strictly  comply  with  the  same,  and 
that  the  permission  to  cross  the  tracks  of  the  Chicago  &  Alton  Rail- 
road Company  at  grade  at  the  point  aforesaid  be  given  upon  that 
express  condition. 

(Signed.)  W.  S.  CANTEELL, 

THOMAS  GAHAN. 
Attest : 

J.  W.  YANTIS, 

Secretary. 
[SEAL.] 


344 


INTERLOCKING. 


Illinois  Central  Railroad  Company,  Petitioner, 

vs. 
Wabash,  Chester  &  Western  Railroad  Company,  Respondent. 


Protection  of  Crossing  at  Tamaroa,  Illinois. 


At  a  session  of  the  Railroad  and  Warehouse  Commission  of  the 
State  of  Illinois,  begun  and  held  at  Chicago,  Illinois,  on  the  3d  day 
of  September,  1896 — present,  W.  S.  Cantrell  and  Thomas  Gahan, 
Commissioners;  J.  W.  Yantis,  Secretary,  and  D wight  C.  Morgan, 
Consulting  Engineer — the  final  order  and  decision  of  said  Commis- 
sion was  duly  rendered. 

Be  it  remembered,  that  at  a  special  session  of  the  Railroad  and 
Warehouse  Commission  of  the  State  of  Illinois,  begun  and  held  on 
Thursday,  September  3,  1896 — present,  W.  S.  Cantrell  and  Thomas 
Gahan,  Commissioners;  J.  W.  Yantis,  Secretary,  and  Dwight  C. 
Morgan,  Consulting  Engineer — came  on  to  be  heard  and  determined 
the  petition  by  the  Illinois  Central  Railroad  Company  against  the 
Wabash,  Chester  &  Western  Railroad  Company  for  the  protection 
by  a  system  of  interlocking  appliances  or  devices  of  the  railroad 
crossing  at  Tamaroa,  Perry  county,  Illinois. 

C.  V.  Gwin,  Esq.,  attorney,  and  Mr.  J.  F.  Wallace,  chief  engineer 
of  the  Illinois  Central  Railroad  Company,  appearing  for  said  com- 
pany. 

H.  C.  Homer,  Esq.,  attorney,  and  Mr.  C.  B.  Cole,  general  manager 
of  the  Wabash,  Chester  &  Western  Railroad  Company,  appearing 
for  said  company. 

And  the  Commission,  after  hearing  the  evidence  of  petitioner  and 
respondent  and  the  argument  of  counsel,  took  said  case  under  advise- 
ment, leave  being  granted  both  petitioner  and  respondent  to  file 
brief  and  argument  in  twenty  (20)  days. 

And  afterwards,  to-wit:  on  the  twenty-fifth  (25th)  day  of  Novem- 
ber, A.  D.  1896,  this  cause  coming  on  again  to  be  heard, — there  being 


345 

present.  W.  S.  Cantrell,  Chairman;  Thomas  Gahan,  Commissioner; 
J.  W.  Yantis,  Secretary,  and  Dwight  C.  Morgan,  Consulting  En- 
gineer— and  it  appearing  to  the  Commission  that  the  respondent  had 
not  filed  any  briefs  or  arguments,  and  the  Commission  being  fully 
advised  in  the  premises: 

Doth  find  from  the  evidence  that  the  public  safety  requires  that 
the  crossings  formed  at  Tamaroa,  Perry  county,  Illinois,  by  the 
tiacks  and  side  tracks  of  the  Illinois  Central  Railroad  Company  and 
the  Wabash,  Chester  &  Western  Railroad  Company  shall  be  pro- 
tected and  operated  by  a  system  of  interlocking  appliances  or  devices. 

It  is  therefore  ordered  by  the  Commission  that  the  said  companies, 
the  Illinois  Central  Railroad  Company  and  the  Wabash,  Chester  & 
Western  Railroad  Company,  shall  forthwith  proceed  to  protect  said 
crossings  of  all  the  main  tracks,  side  tracks  and  switches  of  the  said 
railroad  companies  respectively,  at  Tamaroa,  Perry  county,  Illinois, 
by  a  system  of  interlocking  appliances  and  devices  of  the  kind  and 
description,  and  at  the  places  and  in  the  manner  set  forth  and  shown 
upon  the  blue  print  drawing  and  plan  for  applying  an  interlocking 
plant  and  device  at  said  crossings,  heretofore  filed  with  this  Com- 
mission, and  approved  by  the  Consulting  Engineer  of  this  Commis- 
«ion,  a  copy  of  which  said  plan  is  attached  hereto,  and  is  hereby 
made  a  part  of  this  order.  And  said  system  of  interlocking  appli- 
ances or  devices  shall  be  erected,  maintained  and  operated  in  accord- 
ance with  the  rules,  regulations  and  requirements  heretofore  adopted, 
and  now  in  force  by  this  Commission. 

It  is  further  ordered  by  the  Commission  that  each  of  said  com- 
panies shall  pay  one-half  the  entire  cost  and  expense  of  erecting, 
constructing  and  putting  the  interlocking  device  in  place  ready  for 
use,  including  the  cost  of  the  tower  house,  and  all  appliances,  ma- 
terials, work,  labor  and  expense  incidental  to  the  full  completion  and 
equipment  of  said  interlocking  system. 

It  is  further  ordered  by  the  Commission  that  each  of  said  com- 
panies shall  pay  one-half  the  cost  of  maintenance,  repair  and  com- 
plete operation  of  said  interlocking  device  at  said  crossings,  both  day 
and  night,  including  the  wages  of  the  day  and  night  tower  men  and 
all  other  employe's,  and  all  expenses  incidental  to  the  full  and  com- 
plete operation  of  said  interlocking  system. 

It  is  further  ordered  that  said  companies  shall  construct  the  said 
interlocking  device,  and  have  the  same  in  order  and  ready  for  use, 
within  ninety  days  from  the  date  of  this  order. 

And  it  is  further  ordered  that  this  petition  be  further  held  under 
-consideration  by  this  Commission  pending  the  efforts  of  the  peti- 
tioner and  respondent  to  agree  upon  the  character  and  cost  of  the 
device  to  be  installed  under  this  order. 

W.  S.  CANTRELL, 

THOMAS  GAHAN, 

Commissioners. 
Dated  this  25th  day  of  November,  A.  D.  1896. 

Attest:    J.  W.  YANTIS,  Secretary. 


346 


ORDERS  AND  OPINIONS. 


The  following  orders  and  opinions  have  been  rendered  by  the 
Commission: 

BEFORE  THE  RAILROAD  AND  WAREHOUSE  COMMISSION  or  THE  STATE. 

OF  ILLINOIS. 


St.  Louis,  Peoria  &  Northern  Railway  Company, 

vs. 
Cleveland,  Cincinnati,  Chicago  &  St.  Louis  Railway  Company. 


Petition  to  Cross  at  Grade  at  Pekin. 


Messrs.  Conkling  &  Grout,  for  Petitioner. 
Mr.  Horton,  for  Respondent. 


OPINION  BY  LINDLY,  CHAIRMAN. 

This  is  an  application  filed  by  the  St.  Louis,  Peoria  &  Northern 
Railway  Company  for  leave  to  cross  at  grade  with  its  proposed  track 
the  main  line  and  track  of  the  Cleveland,  Cincinnati,  Chicago  &  St. 
Louis  Rail  Road  Company  within  the  limits  of  the  city  of  Pekin. 

The  hearing  of  this  petition  was  first  set  for  July  6,  1897,  when  it 
was  called  up,  and,  on  motion  of  the  respondent  was  continued  to 
August  3,  1897,  but  afterwards  set  by  the  Commission  for  August 
10,  1897. 

During  this  time  the  respondent  had  surveyed  by  its  engineer  a 
different  route  from  the  one  proposed  by  the  petitioner,  running  on 
the  high  land  east  of  the  proposed  route  mentioned  in  the  petition, 
and  crossing  the  tracks  of  the  respondent  at  a  point  835  feet  east  of 
the  place  set  forth  in  the  petition.  The  respondent  asks  that  the 
petitioner  be  required  to  cross  its  track  overhead  at  the  point  above 
mentioned. 


347 

The  evidence  in  this  case  shows  that  the  proposed  line  of  the  peti- 
tioner would  cross  Park  street,  Court  street,  Spring  street,  Ridge 
street,  Fourteenth  street,  Broadway  and  Market  street.  The  line 
proposed  by  the  respondent  would  cross  Fourteenth  street,  Court 
street,  Broadway  and  Market  street,  and  would  cross  a  park  situated 
in  that  p  .rtion  of  the  city  of  Pekin.  The  petitioner's  proposed 
crossing  would  be  about  on  the  grade  of  the  Big  Four,  while  the 
grade  of  the  proposed  line,  as  suggested  by  the  respondent,  would 
take  the  maximum  grade  of  the  petitioner,  which  is  85  feet  to  the 
mile. 

The  evidence  of  the  engineers  of  the  petitioning  company  shows 
that  the  total  cost  of  an  overhead  crossing  would  be  in  the  neighbor- 
hood of  $122,120,  and  that  the  streets  crossed  by  the  petitioner's  pro- 
posed line  would  have  the  be  spanned  by  viaducts. 

The  Atchison,  Topeka  &  Santa  F6  Railroad  parallels  the  respond- 
ent's road  at  the  point  of  the  proposed  crossing.  The  Atchison, 
Topeka  &  Santa  Fe"  Railroad  Company  has  entered  into  an  agree- 
ment with  the  petitioner  permitting  the  petitioner  to  cross  at  grade 
the  track  of  the  said  Atchison,  Topeka  &  Santa  F6  Railroad  Com- 
pany, petitioner  agreeing  to  interlock  the  crossing  when  built. 

One  point  to  be  considered  in  this  connection  is,  should  an  over- 
head crossing  be  ordered  by  the  Commission  at  this  point  it  would,, 
also,  necessitate  an  overhead  crossing  over  the  tracks  of  the  said 
Atchison,  Topeka  &  Santa  Fe"  Railroad  Company,  and  the  agree- 
ment entered  into  between  the  petitioner  and  the  said  last  mentioned 
company  for  a  grade  crossing  with  an  interlocker  could  not  be 
carried  out. 

The  respondent  avers  that  at  this  particular  point  of  crossing  there 
is  a  highway  which  is  one  of  the  main  highways  in  the  city  of  Pekin,. 
and  that  it  would  endanger  life  and  property  to  have  a  grade  crossing 
at  this  particular  point. 

There  can  be  no  question  but  that  all  grade  crossings  of  railroads 
or  of  highways  are  in  the  main  dangerons,  and  should  be  avoided 
whenever  it  is  practical  or  possible  to  do  so  without  placing  too 
great  a  burden  upon  the  company  constructing  the  same.  We  be- 
lieve that  the  policy  of  this  Commission  should  be  to  order  overhead 
crossings  whenever  it  is  possible  and  practicable  so  to  do.  Under 
the  existing  law  of  this  State  it  is  compulsory  upon  the  company 
desiring  to  cross  to  pay  all  of  the  expenses  of  constructing  said 
crossing  and  the  maintenance  of  the  same. 

Section  206  Revised  Statutes:  "The  railroad  company  seeking  the- 
crossing  shall  in  all  cases  bear  the  entire  expense  of  the  construction 
thereof,  including  all  costs  and  incidental  expenses  incurred  in  the 
investigation  by  the  Board  of  Railroad  and  Warehouse  Commis- 
sioners." 

The  cost  of  constructing  an  overhead  crossing  at  this  place  would 
be  enormous,  and  would  have  to  be  borne  entirely  by  the  petitioning 
line. 


348 

The  proposed  line  of  the  respondent  changes  the  route  of  the 
petitioner,  making  quite  a  curve  south  and  east  of  the  said  proposed 
line  of  the  petitioner,  which  the  evidence  shows  would  not  be  in 
keeping  with  the  proper  construction  of  a  first-class  railroad.  The 
proposed  line  of  the  respondent  proceeds  along  a  ridge,  and  if  this 
line  should  be  varied,  or  the  curves  lessened,  it  would  require  heavy 
fills  to  reach  the  grade  required  by  the  crossing.  On  the  north  side 
of  the  route  proposed  by  the  respondent  is  high  land,  and  the  evi- 
dence shows  that  should  the  petitioner  continue  its  route  to  Peoria 
that  it  would  have  to  cross  the  low  lands  a  short  distance  north  of 
the  proposed  crossing,  which  would  necessitate  heavy  fills  to  make 
their  maximum  grade. 

In  the  construction  of  a  railroad  one  of  the  most  important  things 
to  the  new  company  is  the  location  of  its  depot  in  the  city  through 
which  it  runs.  Should  the  petitioner  be  required  to  elevate  its 
tracks  over  the  tracks  of  the  respondent  at  the  proposed  crossing 
And  where  they  now  propose  to  build  their  depot,  in  the  city  of 
Pekin,  the  petitioner's  track  would  be  at  an  elevation  of  about  20 
feet,  and  there  can  be  no  question  but  that  it  would  be  very  detri- 
mental to  the  freight  and  passenger  traffic  of  the  road  at  the  city  of 
Pekin.  The  site  proposed  by  the  petitioner  for  its  depot  is  as  near 
and  convenient  to  the  business  part  of  the  city  as  is  possible,  and 
is  a  very  desirable  location,  while  the  one  proposed  by  the  respond- 
ent is  at  some  distance  from  the  business  portion  of  the  town  and 
not  so  desirable. 

The  evidence  shows  that  of  all  the  streets  crossed  by  this  company 
on  its  proposed  line  there  are  only  two  that  are  used  to  any  great 
extent,  these  two  being  Court  street  and  Broadway,  as  this  road  runs 
through  the  outskirts  of  the  city  where  these  cross  streets  are  not 
used  very  extensively,  but  should  the  overhead  crossing  be  ordered, 
each  of  these  streets  would  have  to  be  bridged. 

The  respondent  produced  evidence  to  show  that  at  the  petitioner's 
proposed  point  of  crossing  there  is  a  heavy  grade  of  the  respondent's 
road,  reaching  78  feet  to  the  mile,  and  extending  for  about  6  miles, 
and  that  if  the  petitioner  was  allowed  to  cross  at  grade  it  would  in- 
crease the  operating  expenses  of  their  road,  as  it  would  necessitate 
the  stopping  of  the  respondent's  trains  on  this  grade,  and  should  one 
of  their  trains  break  in  two  on  that  grade  it  would  endanger  life  and 
property,  even  though  the  crossing  was  interlocked,  the  respondent 
claiming  that  an  interlocking  system  at  this  place  would  unnecessa- 
rily impede  and  endanger  travel  and  transportation  of  the  respond- 
ent's road.  The  respondent's  evidence  upon  this  point  was  merely 
theoretical,  not  being  based  on  actual  accidents  of  this  character, 
being  merely  statements  of  what  might  happen,  and  were  largely 
imaginary. 

In  the  decision  of  Mr.  Phillips,  a  former  member  of  this  Commis- 
sion, in  the  case  of  the  St.  Louis  &  Eastern  Railway  Company  vs.  the 
Toledo,  St.  Louis  &  Kansas  City  Railway  Company,  the  ground  is 
very  properly  taken  that  "the  railroad  first  upon  the  ground  gains 
important  rights  by  the  fact  of  its  presence.  The  use  of  its  line 


349 

ought  not  to  be  lightly  interfered  with.  It  was  undoubtedly  in  part 
the  object  of  the  act  of  1889,  while  insuring  safety  to  persons  and 
property  transported,  to  protect  established  companies  in  the  enjoy- 
ment of  their  rights.  One  way  of  arriving  at  the  propriety  of  a  pro- 
posed crossing  would  be  to  consider  whether  the  line  to  be  crossed 
would  have  been  built  as  it  is  as  respects  grades,  curves,  etc.,  had 
those  building  it  known  a  crossing  was  to  be  made  in  the  place  pro- 
posed. Such  a  test  might  not  be  decisive,  but  it  is  worthy  of  consid- 
eration in  every  case." 

There  can  be  no  question  that  there  would  not  have  been  a  differ- 
ence in  the  construction  of  the  respondent's  road  at  this  particular 
point  had  it  known  that  a  crossing  would  be  established  at  this 
place,  and  we  can  not  see  how,  with  a  proper  interlocker  at  this  par- 
ticular point  it  would  impede  or  endanger  the  traffic  on  the  respond- 
ent's road,  and  further,  this  grade  extends  for  such  a  distance  that 
it  would  be  impossible  for  the  line  of  the  petitioner  to  cross  at  grade 
any  point  within  reasonable  distance  where  it  would  not  meet  the 
same  obstacles  and  the  same  grade  that  it  does  at  the  point  pro- 
posed by  the  petitioner.  The  objection  to  this  point  could  not  be 
avoided  in  any  possible  way  within  six  miles  with  a  grade  crossing. 

The  respondent  sets  up  that  the  cost  of  the  interlocker  would  be 
$2,100  per  year,  and  that  amount  capitalized  at  6  per  cent,  together 
with  the  cost  of  constructing  the  interlocker,  would  build  the  entire 
overhead  crossing.  We  are  not  prepared  to  say  that  such  is  the  case,, 
but  we  believe,  if  the  respondent  deems  it  fair  to  proceed  on  this 
basis,  that'  it  would  also  be  fair  to  capitalize  the  cost  of  the  annual 
operation  of  this  plant  to  the  respondent.  Under  the  rulings  of  the 
previous  Boards  it  has  been  held  that  the  road  crossing  another  at 
grade  must  pay  for  the  construction  and  future  maintenance  of  the 
interlocking  plant,  but  that  the  operating  expenses  shall  be  equally 
divided  between  the  two  roads.  This  being  the  ruling  of  the  Com- 
mission, the  cost  to  the  respondent  for  its  share  of  the  operating 
expenses  of  this  interlocker  would  be  about  $50  per  month,  and  if 
we  should  capitalize  the  cost  to  the  petitioner  we  ought,  also,  capi- 
talize the  cost  to  the  respondent,  and  $50  per  month  capitalized 
would  be  about  $10,000.  In  justice  this  certainly  should  be  done  if 
an  overhead  crossing  is  ordered,  but,  under  the  existing  law,  we  are 
powerless  to  assess  the  road  crossed  in  this  manner,  and  until  the  • 
laws  are  changed  to  that  effect  we  must  assess  the  entire  cost  of  an 
overhead  crossing  to  the  petitioner. 

It  is  and  will  be  the  policy  of  this  Commission  to  order  overhead 
or  under  crossings  wherever  and  whenever  it  is  possible  to  do  so, 
believing,  as  we  do,  that  the  advanced  thought  and  system  of  rail- 
road building  demands  it,  and  that  the  increased  speed  of  trains 
and  the  safety  of  life  and  property  require  it,  but  where  the  railroad 
crosses  the  outskirts  of  a  city,  as  in  this  case,  and  the  cost  of  neces- 
sary viaducts  and  bridges  over  the  highways  and  the  roads  is  so 
immense  that  it  would  seem  unjust  to  burden  this  new  road  with 
this  great  cost,  which  the  Commission  is  required  to  do  under  the 
statute. 


350 

For  the  above  stated  reasons,  we  are  compelled  in  justice  to  the 
petitioning  road  in  this  case  to  permit  it  to  cross  at  grade  the  track 
of  the  respondent. 

DECISION. 

It  is,  therefore,  decided  and  ordered  that  the  petitioner,  the  St. 
Louis,  Peoria  &  Northern  Railway  Company,  have  leave,  and  it  is 
hereby  empowered,  to  cross  with  its  track  the  main  line  and  track  of 
the  Cleveland,  Cincinnati,  Chicago  and  St,  Louis  Railway  Company 
at  grade  at  a  point  near  the  intersection  of  Broadway  and  Fifteenth 
street,  in  the  city  of  Pekin,  in  the  county  of  Tazewell  and  State  of 
Illinois.  The  exact  point  of  crossing  established  in  this  decision  is 
marked  "A"  on  the  plat  filed  and  made  a  part  of  the  petition  in  the 
above  entitled  cause. 

It  is  further  ordered  that  the  petitioning  road  interlock  the  cross- 
ing at  the  above  named  point  with  an  interlocking  system  in  accord- 
ance with  the  rules  and  requirements  of  the  Board  of  Railroad  and 
Warehouse  Commissioners  of  the  State  of  Illinois,  and  that  the  cost 
of  the  construction  and  future  maintenance  thereof  shall  be  paid  by 
the  petitioning  road,  and  that  one  half  of  the  cost  of  the  operating 
expenses  of  said  interlocking  plant  at  said  point  shall  be  paid  by 
the  Cleveland,  Cincinnati,  Chicago  &  St.  Louis  Railway  Company, 
the  respondents  herein. 

It  is  further  ordered  that  the  petitioner  pay  the  costs  and  expenses 
of  the  Commission  incurred  under  its  petition. 

Springfield,  111.,  August  23, 1897. 


BEFORE  THE  RAILROAD  AND  WAREHOUSE  COMMISSION  OF  THE  STATE 

OF  ILLINOIS. 


St.  Louis,  Peoria  &  Northern  Railway  Company, 

vs. 
Peoria,  Decatur  &  Evansville  Railroad  Company. 


Petition  to  Cross  at  Grade  at  Green  Valley. 


OPINION  BY  LINDLY,  CHAIRMAN. 

This  is  an  application  for  leave  to  cross  respondent's  road  at  Green 
Valley  at  grade.  The  petition  is  in  the  usual  form  and  is  based  on 
the  provisions  of  the  statute  as  provided  in  the  6th  paragraph  of 
section  19,  of  chapter  114,  of  the  act  of  March  1,  Ib72,  concerning 
railroads.  Petition  also  asks  that  the  Commission  enter  an  order  fix- 
ing the  place  of  said  crossing  at  grade  and  to  provide  a  proper  device 


351 

and  appliance  for  the  protection  of  said  crossing  in  pursuance  of 
an  act  entitled,  "An  act  to  protect  persons  and  property  from  danger 
at  the  crossings  and  junctions  of  railroads  by  providing  a  method  to 
compel  the  protection  of  the  same,"  in  force  July  1,  1891. 

Respondent  has  filed  its  answer  herein  denying  that  the  place  at 
which  pesitioner  seeks  to  cross  respondent's  track  is  a  proper  and 
safe  place  for  such  crossing,  and  that  a  crossing  at  grade  at  such 
place  will  unnecessarily  impede  and  endanger  the  travel  and  trans- 
portation upon  respondent's  road,  alleging  that  an  overhead  crossing 
would  obviate  such  danger  and  the  delay  and  impeding  of  travel  and 
transportation  incident  to  such  grade  crossing,  and  that  such  over- 
head crossing  can  be  constructed  at  a  reasonable  expense  to  peti- 
tioner. Respondent  offered  on  the  trial  of  this  cause  to  depress  its 
track  four  feet  at  its  own  expense,  in  the  event  that  an  overhead 
crossing  is  ordered. 

It  is  contended  by  counsel  for  petitioner  that  the  right  or  power 
in  the  Board  of  Railroad  and  Warehouse  Commissioners  in  this  State 
to  order  an  overhead  or  underneath  crossing  where  one  road  proposes 
to  construct  its  line  of  track  across  another  already  constructed  and 
in  operation,  is  doubtful.  Under  the  constitution  the  right  of  peti- 
tioner to  condemn  its  right  of  way  across  the  respondent's  road  can 
not  be  denied,  and  any  statute  which  wouJd  deny  that  right  would 
be  in  contravention  to  the  constitution  and  the  provisions  of  the  act 
of  1872  permitting  the  construction  and  uniting  of  one  road  with 
another,  with  proper  turn-outs,  etc.,  is  in  full  force  and  effect.  In 
construing  the  various  acts  of  the  Legislature  on  the  subject  of  rail- 
road crossings  in  this  State,  passed  since  the  adoption  of  the  consti- 
tution of  1870,  there  is,  in  the  opinion  of  the  Commission,  no  conflict 
whatever. 

Uuder  the  act  entitled  "An  act  in  relation  to  the  crossing  of  one 
railroad  by  another,  and  to  prevent  danger  to  life  and  property  from 
grade  crossings,"  in  force  July  1,  1889,  the  Commission  is  expressly 
clothed  to  prescribe  "the  place  where  and  the  manner  in  which  said 
crossing  shall  be  made."  But  with  the  question  of  compensation  for 
property  actually  taken  for  such  crossing,  and  the  damages  resulting 
therefrom,  the  Commission  has  nothing  to  do.  Those  questions  are 
to  be  determined  under  the  laws  of  eminent  domain,  and  this  statute 
does  not  in  any  way  conflict  with  the  constitution  or  any  statute  on 
the  subject  of  railroad  crossings  in  this  State.  The  act  of  1891  was 
passed  for  the  purpose  of  furnishing  means  of  protection  to  grade 
crossings  on  railroads  already  constructed  and  in  operation,  and  on 
such  railroads  as  shall  hereafter  cross  each  other  at  grade,  but  this 
statute  does  not  conflict  in  any  way  with  the  act  of  1889.  The  acts 
of  1872  and  1891  do  not  give  an  absolute  right  in  one  road  to  cross 
the  main  line  of  another  at  grade.  When  a  proper  case  is  brought 
before  this  Commission,  raising  the  question  as  to  the  place  and 
manner  that  a  proposed  line  of  railroad  shall  cross  the  main  line  of 
another  railroad  already  in  operation,  this  Commission  has  full 
power  to  prescribe  an  overhead  or  underneath  crossing  if,  in  their 
opinion,  the  facts  warrant  such  an  order.  The  act  of  1889  was  passed 


352 

expressly  for  this  purpose.  The  language  of  the  statute  is  broad, 
and,  while  the  words  overhead  or  underneath  are  not  expressly  used,, 
much  broader  and  more  comprehensive  language  is  used. 

The  danger  to  life  and  property  from  grade  crossings  has  been 
frightfully  demonstrated  in  this  State,  and  no  ingenuity  of  man  has 
yet  found  a  device  or  appliance  that  will  absolutely  prevent  all 
danger  at  grade  crossings. 

With  the  number  of  railroads  in  operation  in  the  State  of  Illinois,, 
carrying,  as  they  do,  thousands  of  people  daily,  and  recognizing,  as 
we  must,  that  however  strict  the  rules  and  regulations  thrown  around 
employes,  and  however  much  vigilence  they  may  exercise,  they  have 
proven  ineffectual  to  protect  the  lives  of  passengers  and  of  the  em- 
ployed themselves.  The  trainmen  become  accustomed  to  these  grade 
crossings  and  look  upon  them  as  common  affairs,  and  trains  are  run 
at  high  rates  of  speed  over  these  crossings  provided  with  interlock- 
ing devices,  and  fearful  accidents  have  occurred.  This  is  a  matter  of 
common  experience.  Private  inconveniences  and  cost  must  yield  to 
public  necessity,  and,  while  the  cost  of  an  overhead  crossing  in  this 
case  will  be  much  larger  than  a  grade  crossing,  yet  the  protection  to 
life  and  property  require  it. 

The  present  Railroad  and  Warehouse  Commission  has  fully 
determined,  where  physical  conditions  will  permit,  and  in  proper 
cases,  not  to  order  grade  crossings  in  the  construction  of  new  lines 
of  railroads  within  this  State.  The  lives  of  the  traveling  public  and 
of  the  employes  of  the  many  railroads  operating  in  this  State  are 
more  to  be  considered  than  the  mere  question  of  cost. 

The  petition  and  answer  filed  in  this  case,  and  the  evidence  taken, 
bring  this  case  under  the  provisions  of  the  act  of  1889. 

It  appears  from  the  evidence  submitted  in  this  case  that  the 
Peoria,  Decatur  &  Evansville  Railway  Company  operates  ten  trains 
daily,  that  is,  five  each  way,  over  its  line  at  the  point  of  the  proposed 
crossing.  It  further  appears  from  the  evidence  that  from  the  loca- 
tion of  the  side  track  of  the  respondent  at  Green  Valley  that  trains 
approaching  from  the  southeast  that  desire  to  head  in  on  the  side 
track  would  have  to  stop  on  the  crossing,  if  a  grade  crossing  should 
be  permitted.  It  further  appears  that  the  physical  conditions  are 
such  that  an  overhead  crossing  can  be  constructed  at  an  estimated 
cost  of  $20,000. 

The  Commission  therefore  finds  that,  with  due  regard  to  the  safety 
of  life  and  property,  it  will  be  necessary,  to  construct  an  overhead 
crossing  at  the  crossing  of  said  railroads. 

The  Commission  further  finds  that  a  grade  crossing  at  this  point, 
and  in  the  manner  provided  by  the  petition,  would  impede  and  en- 
danger travel  and  transportation  at  said  point  on  the  Peoria,  Decatur 
&  Evansville  Railroad. 


353 

DECISION. 

It  is  hereby  ordered  and  adjudged  that  the  petitioner,  the  St. 
Louis,  Peoria  &  Northern  Railway  Company,  have  leave,  and  is 
hereby  empowered,  to  cross  with  its  tracks  the  main  line  and  track  of 
the  respondent,  the  Peoria,  Decatur  &  Evansville  Railway  Company, 
by  an  overhead  crossing,  leaving  •  twenty-two  feet  in  the  clear,  that 
is,  the  lower  part  of  the  superstructure  of  the  said  overhead  crossing 
shall  be  twenty- two  feet  above  the  top  of  the  rails  of  the  said  Peoria, 
Decatur  &  Evansville  Railway  Company.  The  measurement  to 
commence  at  the  top  of  the  rails  of  the  said  respondent,  the  Peoria, 
Decatur  &  Evansville  Railway  Company,  after  the  said  respondent 
shall  have  depressed  its  track  four  feet,  according  to  the  agreement 
of  the  receiver  of  said  road  made  in  this  cause. 

The  point  of  crossing  shall  be  fifteen  feet,  more  or  less,  west  of 
the  north  and  south  center  line  of  section  35,  township  23  north, 
range  5  west  of  the  3d  P.  M.,  in  the  county  of  Tazewell,  in  the  State 
of  Illinois,  more  clearly  shown  by  the  plat,  marked  "Exhibit  One," 
filed  by  the  respondent  in  this  cause. 

It  is  further  ordered  and  adjudged  that  the  said  petitioner  shall 
pay  all  the  cost  of  the  construction  and  future  maintenance  of  said 
crossing. 

It  is  further  ordered  that,  according  to  the  agreement  made  by  the 
said  Peoria,  Decatur  &  Evansville  Railway  Company,  in  this  cause 
filed,  that  the  said  Peoria,  Decatur  &  Evansville  Railway  Company 
depress  its  tracks  four  feet  at  the  point  of  the  above  mentioned 
crossing  at  its  own  expense. 

It  is  further  ordered  that  the  petitioner  pay  the  cost  and  expenses 
of  the  Commission  incurred  under  its  petition. 

It  is  further  ordered  that  permission  be,  and  the  same  is  hereby, 
granted  to  the  said  petitioner,  the  St.  Louis,  Peoria  &  Northern  Rail- 
way Company,  to  construct  at  grade  temporary  tracks  and 
crossings  to  be  used,  if  necessary,  for  the  construction  of  the  over- 
head crossing  in  this  order  described.  Said  temporary  tracks  and 
grade  crossings  to  be  removed  within  one  year  from  the  date  of  this 
order. 

It  is  further  ordered  that  this  petition  be  further  held  under  con- 
sideration until  the  completion  of  said  overhead  crossing  and  the  re- 
moval of  said  temporary  tracks  and  grade  crossings  aforesaid. 

SPRINGFIELD,  ILL.,  August  23,  1897. 


—23  O. 


354 

BEFORE  THE  RAILROAD  AND  WAREHOUSE  COMMISSION  OF  THE  STATE 

OF  ILLINOIS. 


Illinois  Central  Railroad  Company 

vs. 
Peoria,  Decatur  &  Evansville  Railway  Company. 


Petition  for  the  Protection  of  the  Crossing  of  Said  Roads  at  Mattoon, 

Illinois. 


September  7,  1897.     Petition  filed. 

September  8,  1897.     Copy  of  same  sent  respondent. 

September  8,  1897.     Date  of  viewing  set  for  September  13,  3  p.  m. 

September  13,  1897.     Crossing  viewed  by  the  Commission. 

September  18,  1897.  Hearing  set  for  October  2,  1897.  Parties 
notified. 

September  22,  1897.     Date  of  hearing  changed  to  October  5,  1897. 

September  22,  1897.     Change  in  date  sent  to  both  parties. 

October  2,  1897.     Date  of  'hearing  reset  for  October  11. 

October  2,  1897.     Both  parties  notified  of  change. 

October  9,  1897.     Answer  of  respondent  filed. 

October  11,  1897.  Case  called  at  10  a.  m.  Evidence  heard,  and 
matter  taken  under  advisement  by  Commission. 

January  4,  1898.     Opinion  and  order  recorded. 


Colonel  Gwin,  representing  petitioner. 
Mr.  Horton,  for  respondent. 


OPINION  OF  THE  COMMISSION,  BY  LINDLY,  CHAIRMAN. 

This  is  a  petition  for  the  protection  of  the  crossing  of  the  Illinois 
Central  Railroad  Company  and  the  Peoria,  Decatur  &  Evansville 
Railway  Company,  at  Mattoon,  Illinois. 

Petition  by  the  Illinois  Central  Railroad  Company  was  filed,  and 
answer  made  thereto  by  the  respondent,  the  Peoria,  Decatur  & 
Evansville  Railway  Company.  Petition  is  filed  under  the  provisions 
of  the  present  statute  governing  interlocking  devices.  The  evidence 
has  been  heard,  and  the  Commission  has  made  an  examination  of 
the  crossing  in  question. 

It  is  contended  that,  by  virtue  of  a  contract  heretofore  made  by  the 
Grayville  &  Mattoon  Railroad  Company  with  the  petitioner,  the  Il- 
linois Central  Railroad  Company,  that  the  respondent  should  pay 


355 

the  cost  of  constructing,  maintaining  and  operating  said  interlocking 
system.  The  contract  was  made  at  the  time  of  the  crossing  by  the 
Mattoon  &  Grayville  Railroad  of  the  Illinois  Central  Railroad,  since 
which  time  the  respondent  has  succeeded  to  the  right  of  the  said 
Mattoon  &  Grayville  Railroad  Company. 

We  have  carefully  examined  the  briefs  filed  by  the  petitioner  and 
the  respondent,  and  the  law  governing  the  contract  in  question.  The 
contract  provides  that  the  Mattoon  &  Grayville  Railroad  Company 
should  erect  and  maintain  gates  and  supply  watchmen  at  said 
crossing. 

The  petition  for  an  interlocker,  under  our  present  statute,  in  no 
way  could  be  controlled  or  regulated  by  the  contract  in  question.  We 
are  further  of  the  opinion  that  the  covenants  in  said  contract  would 
not  be  binding  upon  the  respondent,  the  Peoria,  Decatur  &  Evans- 
ville  Railroad  Company,  so  far  as  it  affects  the  question  involved  in 
the  constructing  and  maintaining  of  an  interlocking  system  at  the 
crossing  in  question. 

As  to  the  right  of  the  Illinois  Central  Railroad  Company  to  main- 
tain an  action  against  the  Peoria,  Decatur  &  Evansville  Railway 
Company  under  the  contract  in  question,  to  compel  the  respondent 
to  maintain  gates  and  watchmen  at  said  crossing,  we  express  no 
opinion.  The  question  does  not  arise  in  this  proceeding. 

We  are  of  the  opinion  that  an  interlocking  system  should  be  con- 
structed, maintained  and  operated  at  the  crossing  in  question  for  the 
safety  of  the  public. 

DECISION. 

It  is,  therefore,  ordered  by  the  Commission,  that  the  said  com- 
panies, to- wit:  the  Illinois  Central  Railroad  Company  and  the  Peo- 
ria, Decatur  &  Evansville  Railway  Company  forthwith  proceed  to 
protect  the  said  railroad  crossing  at  Mattoon,  Illinois,  by  an  inter- 
locking system  acceptable  to  the  Commission. 

It  is  further  ordered  by  the  Commission,  that  each  of  said  railroad 
companies  shall  pay  such  proportion  of  the  cost  of  constructing, 
erecting  and  maintaining  the  said  interlocking  system,  and  all 
thereto  appertaining,  as  the  number  of  levers  that  shall  operate  the 
switches,  signals  and  other  parts  of  the  said  interlocking  system 
in  and  for  the  respective  tracks  of  the  said  companies  shall  bear  to 
the  whole  number  of  levers  required  in  said  interlocking  system, 
and  each  of  the  said  companies  shall  pay  one-half  the  cost  of  oper- 
ating the  said  interlocking  system. 

It  is  further  ordered  by  the  Commission,  that  this  petition  be  held 
under  consideration  by  the  Commission  pending  the  efforts  of  the 
petitioner  and  respondent  to  agree  upon  a  plan  of  interlocking,  for 
which  purpose  they  shall  be  allowed  a  period  of  sixty  days  from  and 
after  this  date. 

Dated  Springfield,  Illinois,  January  4,  1898. 
Adopted  January  4,  1898. 


356 

BEFORE  THE  KAILROAD  AND  WAREHOUSE  COMMISSION  OF  THE  STATE 

OF  ILLINOIS. 


O.  L.  Brining,  of  Le  Roy,  Illinois, 

vs. 

Cleveland,  Cincinnati,  Chicago  &  St.  Louis  Railway  Company,  and 

The  Illinois  Central  Railroad  Company    (cited  by  the 

Commission  as  a  party  in  interest.) 


Complaint  and  petition  that  the  Cleveland,  Cincinnati,  Chicago  and 
St.  Louis  be  compelled  to  replace  a  certain  Y  connection  track 
which  said  company  tore  up. 


Petition  and  complaint  filed  November  12;  answer  of  the  Cleve- 
land, Cincinnati,  Chicago  &  St.  Louis  Railway  Company  filed 
November  20,  1897;  evidence  heard  and  petition  taken  under  ad- 
visement January  4,  1898;  petition  denied  and  complaint  dismissed 
February  8,  1898. 


O.  L.  Brining,  representing  himself. 

Moss,  Hudson,  Jamieson  &  Keepers,  representing  the^Illinoi& 
Central. 

Mr.  C.  V.  Jaquith,  representing  the  Cleveland,  Cincinnati^ 
Chicago  &  St.  Louis. 


OPINION  BY  LINDLY,  CHAIRMAN. 

This  is  a  complaint  filed  by  O.  L.  Brining,  of  Le  Roy,  111.,  against 
the  two  above  named  railroad  companies,  charging  that  the  Cleve- 
land, Cincinnati,  Chicago  &  St.  Louis  Railway  Company,  on  the  10th 
day  of  October,  1897,  took  up  a  portion  of  a  certain  Y  track  con- 
necting the  Illinois  Central  Railroad  and  the  said  Cleveland,  Cin- 
cinnati, Chicago  &  St.  Louis  Railway  at  the  point  above  mentioned. 

It  appears  from  the  proof  in  this  case  that  several  years  ago,  when 
this  portion  of  the  Illinois  Central  Railroad  Company  was  owned  by 
a  different  corporation,  and  was  a  narrow  gauge  road,  this  connection 
was  built. 

The  statute  permits  railroads  which  cross  or  intersect  each  other 
to  enter  into  an  agreement  to  make  proper  connections  between  each 
other,  and,  on  failure  to  agree,  proceedings  could  be  had  at  law  com- 
pelling such  connection  to  be  made.  (Hurd,  '97,  S.  20,  P.  6,  p.  1240.) 


357 

The  statute  further  provides  in  the  same  connection,  that  "all 
railroad  companies  incorporated  or  organized,  or  which  may  be  in- 
corporated or  organized,  as  aforesaid,  shall  have  the  right  to  connect 
with  each  other  and  with  the  railroads  of  other  states  on  such  terms 
as  shall  be  mutually  agreed  upon  by  the  companies  interested  in 
such  connection."  (Hurd,  '98,  S.  45,  p.  1245.) 

It  will  be  seen  from  these  two  provisions  of  the  statute  that  this 
connection  was  legally  made,  and  was  duly  authorized  under  the 
law.  The  question  here  presented  is,  has  either  of  the  above  men- 
tioned railroad  companies  the  right  to  terminate  this  contract  and 
terminate  the  connection  between  the  two  lines? 

It  appears  from  the  proof  that  the  complainant's  elevator  is  sit- 
uated on  the  right  of  way  of  the  Illinois  Central  Railroad  Company. 
It  is  insisted  by  him  that  he  has  a  right  to  use  the  Y  track  for  the 
purpose  of  transferring  grain  from  his  elevator  on  the  Illinois  Central 
tracks  to  the  line  of  the  Cleveland,  Cincinnati,  Chicago  &  St.  Louis 
tracks  at  that  point  for  the  purpose  of  shipment  over  the  said  last 
mentioned  company's  road.  That  this  Y  connection  is  a  matter  of 
considerable  convenience  to  him  can  not  be  questioned,  but  when  the 
elevator  was  built  on  the  line  of  railroad  of  the  Illinois  Central  it  is 
to  be  presumed  that  he  could  only  rightfully  insist  upon  the  facili- 
ties afforded  him  by  the  railroad  upon  whose  track  this  elevator  is 
situated.  While  the  removal  of  this  Y  connection  might  inconven- 
ience a  shipper  whose  elevator  was  upon  a  different  road,  yet  the 
same  thing  could  be  insisted  upon  at  any  other  point  where  a  con- 
nection is  made  between  two  railroad  companies  by  a  shipper  who 
desires  to  avail  himself  of  such  connection.  To  illustrate:  If  there 
was  no  connection  between  the  two  roads  at  Le  Roy,  but  at  a  point 
20  miles  distant  from  Le  Roy  a  connection  was  made  between  the 
said  companies,  it  could  as  well  be  insisted  that  the  shipper  would 
have  a  right  to  have  the  connection  maintained  at  said  point  20 
miles  distant.  In  this  view  we  can  not  concur.  The  Y  connection  at 
Le  Roy,  from  the  proof,  was  shown  to  exist  merely  by  agreement  be- 
tween the  two  lines.  The  proof  further  shows  that  it  has  ceased  to 
be  used  as  a  transfer  track  for  car  load  lots  from  one  road  to  the 
other  for  a  long  time. 

This  being  the  case,  we  are  of  the  opinion  that  the  above  men- 
tioned railroad  companies  have  a  right  to  discontinue  the  connection 
and  use  of  the  Y  track.  The  cost  of  maintaining  this  track  is  a  mat- 
ter of  some  consideration,  and,  so  long  as  the  railroad  companies 
have  ceased  to  use  it  for  the  purpose  of  transacting  business  between 
the  two  lines,  and,  in  view  of  the  fact  that  the  complainant  has 
ample  facilities  on  the  line  on  which  he  is  situated,  we  are  of  the 
opinion  that  the  removal  of  the  track  was  not  in  violation  of  any  law 
of  this  State. 

Petition  denied  and  complaint  dismissed. 


358 

BEFORE  THE  RAILROAD  AND  WAREHOUSE  COMMISSION  OF  THE  STATE 

OF  ILLINOIS. 


Postal  Telegraph  Company 

vs. 
Mobile  &  Ohio  Railroad  Company. 


Petition  to  Compel  Respondent  to  Deliver  Material  Between  Stations. 


August  10,  1897.     Complaint  filed. 

July  28,  1898.     Evidence  heard,  and  case  taken  under  advisement. 

August  24,  1898.     Case  decided  and  opinion  and  order  on  file. 


Appearances:     Mr.  J.  R.  Mclntosh,  for  petitioner;  Mr.  Lansden 
and  Mr.  Herbert,  for  respondent. 


OPINION  AND  ORDER  BY  LINDLY,  CHAIRMAN. 

This  is  a  petition  filed  by  the  Postal  Telegraph  Company  asking 
for  an  order  compelling  the  Mobile  &  Ohio  Railroad  Company  to  dis- 
tribute the  poles  and  material  for  the  construction  of  a  line  of  tele- 
graph between  stations,  the  petition  setting  forth  that  it  was  the  pur- 
pose of  the  said  Postal  Telegraph  Company  to  construct  a  line  of 
telegraph  from  Cairo,  Illinois,  to  East  St.  Louis,  in  connection  with 
a  line  extending  to  Mobile,  Alabama. 

The  petition  above  mentioned  was  filed  on  August  10,  1897,  and 
the  case  was  called  for  hearing  on  September  7,  1897,  at  which  time 
representatives  of  both  petitioner  and  respondent  appeared  before 
the  Commission,  and  the  counsel  for  respondent  thereupon  entered  a 
motion  asking  that  the  matter  be  continued  for  the  reason  that  an 
injunction  had  been  granted  by  the  Circuit  Court  of  the  county  of 
Jackson  restraining  the  said  Postal  Telegraph  Company  from  con- 
structing its  line  of  telegraph  on  the  right  of  way  of  the  said  respond- 
ent. The  case  was  continued  pending  the  hearing  of  the  injunction 
suit. 

On  July  9,  1898,  the  injunction  was  dissolved  by  Judge  Vickers, 
Circuit  Judge  of  the  county  of  Jackson,  whereupon  the  petitioner 
prayed  for  a  hearing  upon  its  petition.  The  case  was  set  for  trial  on 
July  28,  1898,  at  which  time  it  was  heard. 

The  main  ground  upon  which  the  petition  is  based  is  the  fact  that 
the  said  respondent  did  distribute  the  poles  and  material  for  the  con- 
struction and  repair  of  the  telegraph  line  of  the  Western  Union  Tele- 


359 

graph  Company  between  stations,  and  that  the  refusal  upon  the  part 
of  the  respondent  to  render  a  like  service  for  the  petitioner  was  un- 
just discrimination  within  the  statute  of  Illinois  governing  unjust 
discrimination. 

The  respondent,  the  Mobile  &  Ohio  Railroad  Company,  filed  its 
answer  to  the  above  mentioned  petition,  which  answer  set  forth  that 
upon  the  ]6th  day  of  June,  1896,  the  said  respondent  entered  into  a 
contract  with  the  Western  Union  Telegraph  Company,  under  and  by 
which  contract  the  said  respondent  agreed  to  distribute  the  poles  and 
materials  between  stations  for  the  construction  and  repair  of  the  tele- 
graph line  of  the  said  Western  Union  Telegraph  Company.  In  con- 
sideration of  which  the  Western  Union  Telegraph  Company  agreed 
to  furnish  the  respondent,  among  other  things,  one  wire  for  the  busi- 
ness of  the  railroad  company,  exclusively,  from  Jackson,  Tennessee, 
to  St.  Louis,  Missouri,  to  be  operated  in  connection  with  the  railroad 
company's  wire  from  Mobile,  Alabama,  to  Jackson,  Tennessee.  The 
telegraph  company  further  agreed  to  set  apart  for  the  joint  use  of 
both  the  telegraph  company  and  the  respondent,  for  the  transaction 
of  railroad  and  commercial  business,  one  wire  on  its  poles  from  Mo- 
bile to  St.  Louis,  and  one  wire  on  branches  where  the  telegraph  com- 
pany may  have  telegraph  lines,  it  being  understood  in  case  of  inter- 
ruption to  the  exclusive  railroad  wires  that  important  railroad  mes- 
sages, directing  the  running  of  trains,  should  have  precedent  on  said 
joint  wire  along  said  railroad,  and  such  messages  should,  also,  have 
precedent  on  joint  wires  along  branch  railroads  so  far  as  the  same 
legally  may.  It  was  further  agreed  upon  the  part  of  the  Western 
Union  Telegraph  Company  that  if,  at  any  time,  the  railroad  company 
should  require  the  exclusive  use  of  more  than  the  wires  above  men- 
tioned it  should  have  the  right  to  appropriate  to  its  own  use  one  ad- 
ditional wire  upon  the  poles  of  the  Western  Union  Telegraph  Com- 
pany upon  giving  sixty  days'  notice  in  writing  thereof  to  the  tele- 
graph company,  and  upon  paying  to  the  telegraph  company  the  value 
of  such  wire  upon  the  poles,  including  the  insulators  thereunto  be- 
longing, or  that  the  railroad  company  might,  at  its  own  expense,  erect 
such  wire  on  such  poles  in  such  position  as  the  telegraph  company 
might  designate. 

This  is  as  much  of  said  answer  as  is  necessary,  in  our  opinion,  to 
refer  to  for  the  decision  of  this  case. 

It  was  insisted  by  the  petitioner  that  the  agreement  to  distribute 
wires,  poles  and  other  necessary  material  for  the  Western  Union 
Telegraph  Company,  by  virtue  of  said  contract,  between  stations,  and 
a  refusal  to  perform  a  like  service  for  the  Postal  Telegraph  Company 
constituted  unjust  discrimination. 

The  unjust  discrimination  provided  by  our  statute  refers  only  to 
any  "unjust  discrimination  in  rates  or  charges  of  toll  or  compensa- 
tion for  the  transportation  of  passengers  or  freight  of  any  descrip- 
tion, or  for  the  use  and  transportation  of  any  railroad  car."  (Chap. 
114,  Sec.  125,  H's  R.  S.,  '97.) 

The  discrimination  complained  of  here  is  not  an  unjust  discrim- 
ination under  our  statute. 


360 

The  next  question  that  presents  itself,  is  it  an  unjust  discrimina- 
tion at  common  law? 

The  rule  laid  down  by  the  clear  weight  of  authority  at  common 
law  is  that  "a  railroad  carrier,  so  far  as  concerns  the  receipt  and 
transportation  of  goods,  however  it  may  be  as  to  rates  of  freight, 
must,  where  the  conditions  and  circumstances  are  identical,  treat  all 
shippers  alike.  It  can  not  furnish  facilities  to  some  shippers  and 
deny  them  to  other  shippers,  unless  there  is  a  difference  in  the  con- 
ditions or  circumstances  such  as  make  a  discrimination  a  just  one." 
(Elliott  on  R.  R.,  Vol.  4,  Sec.  1468,  and  authorities  cited.) 

On  an  examination  of  the  authorities  under  this  rule,  it  will  be 
seen  that  this  rule  only  applies  to  the  delivery  of  goods  at  regular 
stations  or  stopping  places.  No  well  considered  case  can  be  found 
which  holds  that  it  is  a  duty  that  the  railroad  company  owes  to  the 
shipper  or  the  public  to  stop  its  trains  at  any  other  than  regular 
stations. 

In  the  case  under  consideration  the  respondent  entered  into  a  con- 
tract with  the  Western  Union  Telegraph  Company,  by  which  con- 
tract it  receives  special  benefits.  This  contract  is  legal  and  binding 
both  upon  the  Western  Union  Telegraph  Company  and  the  railroad 
company  so  far  as  the  construction  and  operation  of  its  telegraph 
line  is  concerned.  In  consideration  of  the  special  benefits  derived 
by  the  respondent  it  agreed  to  distribute  the  poles  and  material 
between  stations.  To  hold  that  the  railroad  company  would  be  bound 
to  perform  the  same  services  for  any  other  telegraph  company  that 
might  see  fit,  by  condemnation  or  otherwise,  to  pass  over  or  along 
its  right  of  way  without  receiving  any  benefit  therefrom,  would  be 
destroying  the  right  of  contract. 

The  proof  in  this  case  does  not  bring  it  within  the  rule,  as  laid 
down  in  Elliot  on  Railroads,  supra.  "The  conditions  are  not  iden- 
tical." There  is  a  wide  difference  in  the  conditions  and  circum- 
stances which  makes  the  seeming  discrimination  here  a  just  one. 

The  case  cited  by  counsel  for  petitioner,  Mercantile  Trust  Co.  vs. 
Atl.  &  P.  R.  R.  Co..  63  Federal,  p.  915,  does  not  militate  against  the 
rule  here  announced. 

In  that  case  an  application  was  made  to  the  receivers  of  the  Atl.  & 
Pac.  R.  R.  Co.  by  the  Postal  Telegraph  Company  for  an  order  re- 
quiring the  railroad  company  to  distribute  the  necessary  material 
between  the  regular  stations  and  the  furnishing  of  water  to  the  force 
engaged  in  the  construction  of  their  line.  A  brief  extract  from  that 
opinion  shows  an  entirely  different  state  of  facts  than  is  presented  by 
this  record. 

The  Court  says  on  page  915  of  the  opinion: 

"The  evidence  shows  what  is  also  judicially  known  to  the  court 
that  the  right  of  way  of  the  Atl.  &  Pac.  Ry.  Co.  between  the  Needles 
and  Mojave  is  over  a  desert  country,  and  that  the  railroad  company, 
through  the  receivers,  has  possession  and  control  of  all  the  available 
water  supply  upon  and  along  the  right  of  way.  Evidence  was  also 
given  to  the  effect  that  it  was  customary  for  the  railroad  company  to 


361 

furnish  miners  and  other  parties  at  and  between  the  stations  with 
water  for  their  necessities  upon  compensation  paid  therefor,  and  that 
the  poles  and  other  materials  can  be  distributed  and  water  furnished 
to  the  petitioner  without  any  inconvenience  and  in  acccordance  with 
the  usual  and  ordinary  method  of  transacting  the  business  of  the 
railroad  between  the  Needles  and  Mojave." 

It  is  apparent  in  the  case  cited  that  it  was  customary  for  the  rail- 
road company  to  furnish  water  between  stations  to  all  parties  not  in 
the  employ  of  the  railroad  company  performing  any  labor  between 
the  regular  stations  between  the  two  points  named.  The  railroad 
passed  through  a  desert  country.  The  regular  stations  were  at  long 
intervals.  The  railroad  was  in  the  hands  of  receivers,  who  were 
operating  the  road  and  were  clothed  with  a  large  discretion  in  the 
matter,  and  under  the  peculiar  facts  existing  in  the  case  the  court 
made  an  order  providing  for  the  distribution  of  poles  and  materials 
between  stations.  This  case  is  clearly  not  in  point. 

It  can  not  be  maintained  that  because  a  railroad  company  should 
stop  its  train  between  stations  to  permit  a  passenger  to  alight  on  one 
or  two  occasions  that  it  would  thereafter  be  bound,  or  owe  any  duty 
to  the  public  or  any  one,  to  perform  a  like  service  for  some  one  else. 
Or,  if  a  railroad  company  should  see  proper,  under  certain  circum- 
stances, to  deliver  freight  at  a  point  between  stations,  that  it  would 
be  bound  as  a  matter  of  law  to  stop  at  such  point  and  deliver  freight 
for  other  persons,  or  for  the  public  in  general.  Nor  can  it  be  suc- 
cessfully maintained  that  if  a  railroad  company  makes  a  contract  by 
which  it  is  itself  specially  benefited,  to  deliver  material  between  sta- 
tions for  the  construction  and  operation  of  a  line  of  telegraph  which 
is  necessary  to  the  operation  of  the  railroad,  that  it  should  be  bound 
to  distribute  like  materals  for  other  telegraph  companies  from  whom 
it  derives  no  special  benefit,  by  contract  or  otherwise,  and  that  its  re- 
fusal so  to  do  would  constitute  unjust  discrimination. 

The  only  duty  incumbent  upon  the  respondent  in  this  case  is  to 
receive,  transport  and  deliver  the  poles  and  materials  for  the  Postal 
Telegraph  Company  at  its  regular  stations  upon  proper  compensation 
being  paid  therefor. 

Under  the  condemnation  proceedings  the  Postal  Telegraph  Com- 
pany has  an  easement  over  the  right  of  way  of  the  Mobile  &  Ohio 
Railroad  Company,  which  gives  it  the  right  to  enter  upon  the  right 
of  way  of  the  Mobile  &  Ohio  Railroad  Company  at  any  point  neces- 
sary for  the  construction  of  its  line. 


ORDER. 

It  is  therefore  ordered  that  the  prayer  of  the  petitioner  be  denied 
and  that  the  petition  be  dismissed. 

Dated  SPRINGFIELD,  ILLINOIS,  August  23,  1898. 


362 

BEFORE  THE  RAILROAD  AND  WAREHOUSE  COMMISSION  OF  THE  STATE 

OF  ILLINOIS. 


H.  A.  Hammond,  on  |Behalf  of  the  Citizens  of  Wyoming,  Illinois, 

vs. 
Chicago,  Burlington  &  Quincy  Railroad  Company. 


Petition  for  the  Removal  of  Depot. 


For  Petitioner:     H.  A.  Hammond. 
For  Respondent:     Mr.  W.  C.  Brown. 

Petitioners  against  removal:     Mr.  A.  H.  Castle  and  J.  H.  Clock, 
and  Attorney  C.  L.  Billings. 


OPINION  AND  ORDER  BY  LINDLY,  CHAIRMAN. 

This  is  an  application  in  the  matter  of  the  location  of  a  freight  and 
passenger  depot  on  the  Chicago,  Burlington  &  Quincy  -Railroad  at 
Wyoming,  Illinois. 

The  original  application  in  this  case  asked  for  the  removal  of  the 
present  railroad  station  at  what  is  known  as  North  Wyoming  to  what 
is  known  as  South  Wyoming. 

•  The  Commission  has  examined  the  evidence  introduced  by  the 
parties  in  interest,  and  is  of  the  opinion  that  it  has  no  power  in  the 
premises  to  compel  the  removal  of  a  depot  on  the  line  of  any  railroad 
from  one  given  point  to  another. 

The  evidence  in  this  case  shows  that  a  large  proportion  of  the  pop- 
ulation and  business  interests  of  Wyoming  is  located  in  what  is 
known  as  South  Wyoming,  and  that  there  is  a  large  amount  of  freight 
and  passenger  business  emanating  from  that  point.  The  evidence 
further  shows  that  there  is  a  necessity  for  the  location  of  a  pas- 
senger and  freight  depot  at  South  Wyoming. 

The  statute  in  this  State  provides:  "That  all  railroads  in  this  State 
carrying  passengers  or  freight  be,  and  they  are  hereby,  required  to 
build  and  maintain  depots  for  the  comfort  of  passengers  and  for  the 
protection  of  shippers  of  freight  where  such  railroad  companies 
are  in  the  practice  of  receiving  and  delivering  passengers  and 
freight,  in  all  towns  and  villages  having  a  population  of  two  hun- 
dred or  more  on  the  line  of  their  road  and  roads  leased  or  oper- 
ated by  them."  (Chap.  114,  S.  50,  H's  R.  S.  '97.) 


363 

The  proof  in  this  case  further  shows  that  South  Wyoming  has  a 
population  of  over  two  hundred,  and  that  the  Cnicago,  Burlington  & 
Quincy  Railroad  Company  has  been  in  the  habit  of  receiving  and 
delivering  freight  at  a  point  in  South  Wyoming  where  it  is  pro- 
posed to  construct  a  new  depot. 

This,  in  the  opinion  of  the  Commission,  is  sufficient  to  bring  the 
Chicago,  Burlington  &  Quincy  Railroad  Company  under  the  pro- 
visions of  the  above  section  referred  to. 

ORDER. 

It  is  therefore  ordered  that  the  Chicago,  Burlington  &  Quincy 
Railroad  Company,  within  ninety  (90)  days  from  this  date,  shall  con- 
struct a  suitable  railroad  and  passenger  station  at  such  a  point  at 
South  Wyoming  as  shall  best  accommodate  the  people  and  the  busi- 
ness interests  therein  represented. 

It  is  further  ordered  that  this  cause  be  continued  for  such  further 
action  in  the  premises  as  may  be  necessary. 

It  is  further  ordered  that  the  Secretary  of  the  Board  shall  serve 
said  Chicago,  Burlington  &  Quincy  Railroad  Company  with  a  copy 
of  this  order  and  opinion. 

Done  at  Springfield,  Illinois,  August  23,  1898. 


BEFORE    THE    RAILROAD    AND    WAREHOUSE    COMMISSION    OP    THE 

STATE  OF  ILLINOIS. 


IN   THE   MATTER    OF    THE     REVISION   OF    THE   SCHEDULE   OF    RATES   ON 

LIVE    STOCK. 

A  petition  in  this  cause  was  filed  by  the  Chicago  Live  Stock  Ex- 
change of  Chicago  against  the  various  railroads  in  Illinois,  asking 
for  a  revision  of  the  schedule  of  rates  on  live  stock.  The  parties 
appeared  on  the  fourth  day  of  May,  1897,  when  the  petition  was  dis- 
missed on  motion  of  the  defendants  on  the  ground  that  the  Chicago 
Live  Stock  Exchange  was  not  an  interested  party  under  the  rules  of 
procedure  of  the  Illinois  Railroad  and  Warehouse  Commission, 
whereupon  leave  was  granted  to  various  stock  shippers  and  owners  in 
the  State  of  Illinois  to  file  a  petition  in  said  cause,  which  petitions 
were  filed,  setting  up  the  same  cause  of  action.  The  various  rail- 
roads filed  their  respective  answers  thereto. 

The  petition  charges  that  the  petitioners  are  engaged  in  the  busi- 
ness of  feeding  and  shipping  live  stock  in  the  State  of  Illinois,  and 
that  the  live  stock  owned,  fed,  shipped  and  sold  by  them  is  habit- 
ually shipped  over  the  lines  of  defendants'  railroads;  second,  that 
the  defendants  are  common  carriers,  engaged  in  the  transportation 
of  passengers  and  freight  by  railroad,  and  as  such  common  carriers. 


364 

are  subject  to  the  laws  of  the  State  of  Illinois;  third,  that  tho 
published  rates  of  the  defendants'  lines  on  live  stock  between  points 
in  Illinois  are  unreasonably  high  and  extortionate,  and  that  the  said 
tariffs  of  defendants'  lines  on  live  stock  are  generally  based  on  the 
schedule  of  maximum  rates  authorized  by  the  Railroad  and  Ware- 
house Commission  of  the  State  of  Illinois,  and  that  the  rates  on 
live  stock  contained  in  said  schedule  of  rates  are  unreasonably  high ; 
fourth,  that  it  has  been,  and  is,  the  custom  of  the  def  ndant  rail- 
ways to  so  adjust  their  rates  on  live  stock  between  points  wholly 
within  the  State  of  Illinois  so  as  to  exact  the  full  measure  of  charges 
which  they  are  permitted  by  said  schedule  of  the  Illinois  Board  of 
Railroad  and  Warehouse  Commissioners  to  collect,  without  any  re- 
gard to  the  conditions  surrounding  and  which  ordinarily  are  consid- 
ered controlling  factors  in  the  adjustment  of  rates;  fifth,  that  the 
rates  at  which  defendant  railways  carry  live  stock  from  points  in 
Illinois  are  adjusted  on  a  scale  so  much  higher  than  the  rates  from 
points  within  the  State  of  Illinois  to  points  in  Indiana,  Ohio  or 
New  York,  that  it  has  made  it  unprofitable  for  Illinois  shippers  to 
ship  live  stock  to  Illinois  markets,  and  has  resulted  in  discrimination 
against  the  Illinois  markets  and  unreasonable  and  undue  preference 
in  favor  of  other  markets;  that  the  defendant  railways  decline  to  ad- 
just their  rates  on  live  stock  between  points  in  Illinois  to  a  basis 
reasonably  fair,  just  and  equitable. 

Accompanying  the  petition  and  made  a  part  thereof  is  a  proposed 
schedule  of  rates  on  live  stock  submitted  by  the  petitioners,  which 
they  ask  the  Commission  to  adoot. 

The  defendant  railways  admit  that  they  are  common  carriers,  etc. 
They  deny  that  the  schedule  of  maximum  rates  authorized  by  the 
Railroad  and  Warehouse  Commission  on  live  stock  is  unreasonably 
high,  but  insist  that  they  are  unreasonably  low.  The  defendants 
admit  that  the  tariffs  of  defendants'  lines  on  live  stock  are  generally 
based  on  the  schedule  of  maximum  rates  authorized  by  the  Railroad 
and  Warehouse  Commission.  The  defendant  railways  deny  that  it 
has  been  and  is  their  general  custom  to  so  adjust  their  rates  on  live 
stock  between  points  wholly  within  the  State  of  Illinois  so  as  to 
exact  the  full  measure  of  charges  which  they  are  permitted  by  law 
to  collect,  without  regard  to  surrounding  conditions,  etc.  The  de- 
fendant railways  further  deny  that  the  rates  on  live  stock  from  points 
in  Illinois  to  points  in  Indiana,  Ohio  and  New  York  are  adjusted  on 
a  scale  so  much  lower  than  the  rates  applying  wholly  within  the 
State  of  Illinois,  so  as  to  discriminate  against  Illinois  markets,  and 
aver  that  if  there  is  any  discrimination  against  Illinois  markets  on 
live  stock  shipments  it  arises  from  the  excessive  and  exhorbitant  com- 
missions charged  shippers  of  live  stock  by  the  commission  merchants 
at  the  Union  Stock  Yards  and  the  excessive  charges  of  the  Union 
Stock  Yards  and  Transit  Company  for  handling  such  live  stock  at 
the  Union  Stock  Yards.  Defendant  railways  further  deny  that  the 
proposed  schedule  of  rates  offered  by  petitioners  would  be  fair  and 
just,  but,  on  the  contrary,  would  be  unjust,  unfair  and  inequitable. 


365 

In  the  decision  of  all  cases  brought  before  this  Commission,  it  is 
the  duty  incumbent  upon  us  to  consider  the  results  as  they  will  affect 
all  interested  parties — the  investor  or  employer,  the  employ^  and  the- 
general  public. 

The  law  contemplates  that  we  shall  be  the  custodian  of  the  inter- 
ests of  these  three  great  classes,  and  in  the  performance  of  this  duty 
it  is  necessary  that  we  shall  consider  how  a  reduction  of  rates  would 
affect,  not  only  the  railroad  company  itself,  but  the  employe's  and  the 
public. 

The  annual  report  of  this  Board  shows  that,  for  the  year  ending 
June  30,  1897,  there  was  a  total  decrease  in  the  revenues  of  the  roads 
in  all  departments  in  Illinois  of  $2,338,541.  The  result  of  this  de- 
crease in  receipts  affected  more  materially  the  employes  of  the  roads 
than  any  one  else,  because  the  records  show  that  the  decrease  in  the 
number  of  employes  was  3,151  and  that  the  decrease  in  the  amount 
of  salaries  paid  was  over  one  million  dollars. 

This  report  further  shows  that  while  there  was  a  decrease  in  the 
earnings  of  the  roads  of  almost  two  millions  and  a  half  dollars,  a  de- 
crease in  the  number  of  employe's  of  more  than  three  thonsand,  a 
decrease  in  the  salaries  paid  to  the  employe's  of  over  a  million  dollars, 
that  the  amount  of  freight  carried  was  increased  by  619,314  tons, 
which  is  evidence  that  a  larger  amount  of  business  was  done  by  the 
railroads  with  a  less  number  of  employes. 

In  this  case  a  petition  was  presented  to  the  Board,  signed  by  twenty 
thousand  railroad  employe's,  asking  that  the  freight  rates  on  live 
stock  should  not  be  reduced.  This  petition  was  presented  by  men 
who  are  at  the  heads  of  different  organizations,  representing  seventy 
thousand  railroad  employe's  in  the  State  of  Illinois. 

It  must  be  admitted  by  all  fair-minded  men  that  the  railroads,  hav- 
ing just  emerged  from  the  long  period  of  depression  brought  about 
by  the  false  economic  policies  of  the  government,  which  drove  many 
of  them  into  bankruptcy,  and  into  the  hands  of  receivers,  are  in  no 
condition,  at  this  time,  to  stand  a  further  reduction  in  freight  rates, 
when  the  evidence  shows  that,  in  the  last  30  years,  those  rates  have 
been  cut  in  two. 

In  view  of  these  and  other  conditions,  which  it  is  not  necessary 
here  to  reiterate,  it  is  evident  that  any  reduction  in  rates  would  ma- 
terially affect  the  wages  of  those  seventy  thousand  railroad  employe's, 
and  it  necessarily  follows  that  their  diminished  capacity  to  earn 
would  lessen  their  consumption  of  the  products  of  all  who  produce 
the  necessaries  of  life. 

This  is  the  most  progressive  age  in  the  world's  history;  this  the 
most  progressive  nation.  Our  railroad  systems  have  made  the  most 
rapid  progress  in  the  way  of  rapid  transit  and  facilities,  and  our  rail- 
road employe's  are  the  best  that  the  world  produces,  and  the  tendency 
of  the  present  condition  of  traffic  is  to  largely  increase  the  number 
of  employes,  and  we  do  not  feel  that  it  is  justice  to  the  employe's  or 
to  -the  public  to  lower  the  present  live  stock  rates,  which  would  af- 
fect their  existing  wages,  which,  to  say  the  least,  are  now  only  re- 
munerative. 


366 

After  having  passed  through  the  condition  that  existed  from  1893 
to  1896,  in  which  period  all  business  interests  of  the  country  had  suf- 
fered materially,  and  all  evidence  now  indicating  that  the  country  is 
on  the  eve  of  prosperity,  it  would  be  unwise  to  make  a  material  re- 
duction in  rates  that  might  seriously  cripple  the  railroads  of  the 
country,  which  are  the  arteries  of  the  progress  of  the  nation. 

A  large  mass  of  testimony  has  been  taken  bearing  upon  the  sub- 
ject at  issue.  The  case  has  taken  a  wide  range  and  many  questions 
discussed  and  facts  submitted  that  are  not  necessary  to  be  considered 
in  the  decision  of  the  case.  Much  has  been  said,  and  many  exhibits 
offered,  showing  through  rates  from  Southern  Illinois  points  to  east- 
ern markets,  and  from  Kansas  City  to  Chicago.  It  would,  perhaps, 
be  a  sufficient  answer  to  so  much  of  the  case  that  presents  the  ques- 
tion of  interstate  rates  to  say  that  the  Commission  has  no  power 
over  such  rates,  and  could  not  change  them  if  it  should  desire  so  to 
do,  but,  in  so  far  as  such  rates  may  be  used  in  comparison  with  the 
Illinois  rates,  it  is  proper  to  consider  them.  Nearly  every  rate  which 
has  been  suggested  for  comparison  by  the  petitioners  in  this  case  was 
over  through  lines  running  from  the  Mississippi  river  to  the  sea- 
board, and  the  rates  complained  of  are  those  of  intersecting  lines 
•crossing  the  through  lines  from  the  west  to  east.  It  was  not  shown 
that  such  rates  were  remunerative  or  otherwise. 

It  must  be  conceded  that  the  east  and  west  lines,  passing  through 
the  State  of  Illinois,  are  entitled  to  a  fair  share  of  the  business  trib- 
utary to  their  lines,  and  that  points  where  they  cross  north  and 
south  lines  are  clearly  competitive  territory.  The  east  and  west 
lines,  acting  under  the  influence  and  control  of  eastern  trunk  sys- 
tems, and  the  desire  to  secure  what  each  may  conceive  to  be  its 
share  of  traffic  from  competitive  territory,  will  change  rates  from 
time  to  time  so  as  to,  as  nearly  as  possible,  secure  such  share  of  the 
competitive  traffic.  It  has  not  been  shown  in  this  case  that  the  east 
and  west  lines  are  carrying  more  than  they  are  entitled  to  of  the 
competitive  traffic.  A  reduction  of  rates  made  by  this  Commission 
solely  upon  the  ground  of  reducing  the  present  Illinois  rates  so  as 
to  make  them  equal  to  the  east  and  west  rates  at  these  competitive 
points,  upon  the  theory  that  such  a  course  would  result  in  more  stock 
being  shipped  to  Chicago  from  such  points,  would  not  bring  about 
the  effect  sought;  because  it  can  not  be  supposed  for  a  moment  that 
the  east  and  west  lines  would  submit  to  such  wholesale  diversion  of 
traffic  from  their  lines,  but  the  logical  conclusion  is  that  they  would 
promptly  reduce  their  rates  to  meet  the  rates  so  fixed  by  the  Com- 
mission, and  the  same  condition  of  things  would  exist  as  before  the 
reduction,  and,  therefore,  the  very  object  sought  would  not  be  at- 
tained, and  no  more  stock  would  go  from  such  points  to  Chicago  than 
at  present. 

The  proposed  schedule  offered  by  petitioners,  if  adopted  by  the 
Commission,  would  not  reduce  the  Illinois  rates  at  these  intersect- 
ing points  to  a  basis  as  low  as  the  east  and  west  rates  now  are  at  such 
points. 


367 

If  the  rates  in  Illinois  are  to  be  reduced  so  as  to  remedy  the  con- 
dition at  these  intersecting  points,  they  must  be  made  lower  than 
the  schedule  proposed  by  the  petitioners. 

It  must  be  remembered  that  the  east  and  west  lines  traversing  the 
State  of  Illinois  bear  their  burden  of  taxation  and  contribute  their 
support  to  the  public  school  fund,  the  road  and  bridge  fund,  and  all 
other  forms  of  local  taxation,  the  same  as  north  and  south  lines  trav- 
ersing the  State  entering  the  city  of  Chicago. 

The  Commission  is  bound  to  act  fairly  and  justly  to  all  lines  in  the 
State  of  Illinois  without  regard  to  which  way  they  run  or  what  mar- 
ket they  enter. 

In  all  the  contests  waged  in  the  legislatures  of  the  various  states, 
the  Congress  of  the  United  States,  and  the  several  courts  of  the  dif- 
ferent states  for  the  control  of  the  railroads  by  the  power  that  cre- 
ated them,  no  law  has  gone  further  than  to  claim  the  right  to  fix  the 
maximum  rates  by  the  body  created  by  the  state  for  that  purpose 
and  to  punish  discrimination. 

The  Illinois  Commission  has  power  to  fix  the  maximum  rates  that 
a  railroad  may  charge  for  hauling  any  kind  of  freight  or  passengers, 
but  has  no  power  to  fix  the  minimum  rate  for  hauling  the  same.  The 
railroad  can  carry  freight  at  its  own  price  so  long  as  it  does  not  ex- 
ceed the  maximum  rate  thus  fixed,  and  carries  the  freight  at  the 
same  compensation  for  all  shippers  from  the  same  point,  without  in- 
terference of  the  Railroad  Commission,  unless  discrimination  is 
proven.  This  condition  will  remain  so  long  as  the  Commission  has 
only  power  to  fix  maximum  rates. 

The  rule  of  the  Inter-State  Commerce  Commission,  that  the  road 
can  not  charge  more  for  the  short  haul  than  it  does  for  the  long  haul, 
opens  wide  the  doors  of  competition,  and  has  resulted  in  the  exceed- 
ing low  rates  referred  to  in  the  evidence. 

Madness  seems  to  have  seized  many  railroad  managers,  and  in 
their  desire  to  carry  freight  much  of  the  freight  of  the  country  is 
carried  at  prices  far  below  actual  cost.  The  conditions  have  obtained, 
and  this  rate  cutting  has  continued,  until  there  is  less  faith  among 
railroad  managers  in  regard  to  their  agreements  to  maintain  rates 
than  can  be  found  in  any  other  business.  There  seems  to  be  no 
good  faith,  so  far  as  traffic  agreements  are  concerned. 

These  facts,  together  with  the  depression  in  railroad  business  above 
referred  to,  in  1893  to  1896,  led  to  the  bankruptcy  and  receiverships 
referred  to  of  these  seaboard  lines. 

For  this  Commission  to  reduce  the  rates  in  Illinois  to  meet  these 
reckless  rates,  would  be  worse  than  suicide  to  our  Illinois  lines,  and 
materially  unjust  and  unfair  to  one-fifth  of  our  population  who  are 
directly  interested  in  the  railroads  of  our  State. 

The  main  question  presented  by  the  record  in  this  case  is,  are  the 
present  live  stock  rates  in  Illinois  too  high,  and  should  they  be  re- 
duced? 


368 

The  present  schedule  of  maximum  rates  on  live  stock  has  been  in 
force  since  July  1,  1895,  at  which  time  a  general  revision  of  the 
schedule  of  maximum  rates  on  all  commodities  was  made.  It  is  not 
desirable,  either  for  the  stock  shipper  or  the  railroads,  that  constant 
changes  in  rates  should  be  made. 

The  consideration  of  freight  rates  is  of  necessity  almost  entirely 
one  of  comparison.  It  is  not  possible,  in  this  case,  to  adjust  rates 
upon  the  theory  suggested  by  the  Supreme  Court  of  the  United 
States  in  the  Nebraska  Rate  Case,  "that  rates  should  be  adjusted 
so  as  to  yield  such  a  revenue  that  would  pay  a  fair  return  on  the 
money  invested  in  the  construction  and  operation  of  railways."  If 
that  is  the  rule,  it  would  also  be  fair  to  consider  the  cost  of  raising 
live  stock  and  transporting  it  to  market  in  order  that  the  rates  should 
be  so  adjusted  that  the  stock  shipper  and  raiser  might  receive  a  fair 
return  on  his  investment.  There  is  no  evidence  in  this  case  touch- 
ing either  of  these  propositions. 

Comparing  the  rates  on  live  stock  in  Illinois  with  other  states 
practically  occupying  the  same  territory,  namely:  Iowa,  Michigan, 
Wisconsin,  Minnesota,  Dakota,  Missouri  and  Nebraska,  some  of 
which  have  laws  similar  to  Illinois,  it  will  be  found,  without  almost 
a  single  exception,  that  the  live  stock  rates  in  Illinois  are  materially 
lower  than  in  any  other  western  state. 

It  appears  from  the  evidence  offered  that  in  Illinois  the  distance 
tariff  for  horses  and  mules,  for  car-load  lots,  in  cents  per  one  hundred 
Ibs.  for  100  miles  is  10.4;  cattle,  9.5;  hogs,  13;  sheep,  14.4;  while 
in  Iowa  the  rate  on  horses  and  mules  for  the  same  distance  is  12.5; 
cattle,  11.32;  hogs,  10.96;  sheep,  16.00  per  one  hundred  Ibs.  In 
Michigan,  for  a  like  distance,  the  rate  on  horses  and  mules  is  $38.50 
per  car;  cattle,  17.5;  hogs,  17.5;  sheep,  17.5  per  hundred  Ibs.  In 
Wisconsin  for  a  distance  of  100  miles  the  rate  on  horses  and  mules 
is  16.5;  cattle,  15;  hogs,  18.5;  sheep,  18.5  per  hundred  Ibs.  In 
Minnesota  the  rate  for  100  miles  on  cattle  is  15.;  hogs,  15.;  and 
sheep,  15.  per  hundred  Ibs.  In  Dakota,  for  the  same  distance,  the 
rate  on  cattle  is  16.5;  hogs,  18.5;  sheep,  19.5  per  hundred  Ibs. 

Thus,  it  is  evident  that  Illinois  has  a  much  lower  live  stock  rate 
than  neighboring  states  similarly  situated.  Yet,  it  might  be  con- 
tended that  the  rates  in  the  adjoining  states  are  too  high.  That 
leads  us  to  the  consideration  of  the  question  of  the  cost  of  carrying 
live  stock  as  compared  with  the  cost  of  carrying  other  classes  of 
freight.  An  average  train  of  live  stock,  as  shown  by  the  proof,  con- 
sists of  about  25  cars,  while  an  average  train  of  dead  freight  consists 
of  about  35  cars.  The  stock  train  is  required  to  make  quick  time 
and  can  not  be  delayed.  Any  delay  is  the  occasion  for  a  claim  for 
damages  should  there  be  an  unfavorable  change  in  the  market  price 
to  the  shipper.  Stock  is  required  to  be  watered  en  route.  If  an  ac- 
cident occurs  by  which  the  stock  is  injured  the  loss  is  necessarily 
great  as  compared  with  accidents  to  dead  freight.  The  proof  shows 
that  free  transportation  is  given  to  one  person  accompanying  one  car 
of  stock  and  one-half  fare  for  the  return  trip;  and  shippers  of  two  or 


369 

iree  cars  are  entitled  to  free  transportation  for  one  person  to  the 
arket  and  return;  and  as  the  number  of  cars  increases  there  is  a 
>rresponding  increase  of  the  persons  entitled  to  free  transportation. 

Under  the  rule  laid  down  by  the  Supreme  Court  of  Illinois,  per- 
ms traveling  in  these  stock  trains  are  entitled  to  recover  for  per- 
>nal  injuries  growing  out  of  any  negligence  of  the  railroad  company 
te  same  as  parties  traveling  on  passenger  trains. 

It  was  further  shown  in  the  proof  that  the  value  of  a  car  load  of 
ittle  shipped  in  a  standard  car  is  about  $850.00;  such  valuation 
nng  based  on  twenty  head  to  the  car  and  on  a  value  of  $42.50  per 
jad.  The  revenue  derived  by  the  railroad  company,  under  the 
•esent  rates  fixed  by  the  Illinois  Railroad  and  Warehouse  Commis- 
on  for  a  distance  of  100  miles  on  a  car  load  of  cattle,  is  $18.05; 
hile  the  revenue  derived  by  the  railroad  company  for  carrying  a 
ir  load  of  hay,  based  on  nine  tons  to  the  car,  at  $7.50  per  ton,  mak- 
:g  the  car  load  $67.50  for  a  distance  of  100  miles,  is  $12.70,  A  car 
ad  of  brick,  valued  at  $48.00  per  car,  earns  for  the  railroad  com- 
my,  for  a  distance  of  100  miles,  $30.43.  Lumber,  valued  at  $144.00 
car,  earns  for  the  railroad  for  a  carriage  of  100  miles,  $26.04.  Salt, 
hich  has  a  valuation  of  $50.40  a  car,  earns  $20.15  per  car  for  a  dis- 
nce  of  100  miles. 

A  large  number  of  other  items  of  dead  freight  might  be  cited  to 
low  that  the  rates  for  carrying  live  stock  are  relatively  much  lower 
lan  for  carrying  almost  any  other  commodity.  Live  stock  is  among 
te  most  valuable  of  freight  carried,  and  the  value  of  the  commodity 
irried  should  rightfully  be  considered  in  fixing  the  rate  of  carriage. 

It  further  appears  in  the  proof  that  about  ninety  per  cent  of  all  the 
irs  used  for  the  transportation  of  live  stocti  are  returned  empty, 
hile  only  twenty  per  cent  of  the  cars  used  for  the  transportation  of 
,her  commodities  are  returned  empty. 

The  present  market  price  of  live  stock  is  much  higher  than  at  any 
me  since  the  last  revision  of  live  stock  rates  in  this  State,  and  is 
•day  paying  to  the  stock  raiser  a  better  profit  than  any  other  com- 
odity  raised  on  the  farm,  and  is  being  transported  to  market  at  a 
slatively  lower  freight  rate  than  any  other  commodity  of  like  value. 

The  Commission,  having  carefully  examined  all  the  evidence  in- 
oduced,  is  of  the  opinion  that  the  present  live  stock  rates  in  Illi- 
)is  are  reasonable  and  should  not  be  reduced. 

During  the  progress  of  the  trial  of  this  case  in  March,  1898,  the 
aestion  of  the  two  dollar  terminal  charge  made  by  the  defendants 
»r  delivering  stock  at  the  Union  Stock  Yards  was  raised.  There  is 
Dthing  in  the  original  petition,  or  answers  filed  thereto,  touching 
tis  question;  but  the  Commission,  with  a  view  of  trying  to  adjust 
le  question  of  the  terminal  charge,  held  several  conferences  with  the 
spresentatives  of  the  railroad  companies  and  the  Union  Stock  Yards 

Transit  Company  relative  thereto.  The  Commission  is  not  called 
pon  to  decide  the  question  of  this  terminal  charge,  as  such  question 

— 24  O 


370 

is  no  part  of  the  record  in  this  case.  Much  of  the  delay  in  the  de- 
cision of  this  case  has  been  occasioned  by  the  attempt  to  bring  about 
such  adjustment. 

The  representatives  of  the  railroad  companies  have  stated  to  the 
Commission  their  willingness  to  take  off  the  two  dollar  terminal 
charge  provided  the  Union  Stock  Yards  &  Transit  Company  would 
take  off  their  trackage  charge  for  the  use  of  the  tracks  of  the  said 
Union  Stock  Yards  &  Transit  Company  from  the  termini  of  the 
various  railroads  to  the  Union  Stock  Yards.  The  Commission  has 
been  unable  to  secure  any  agreement  between  the  railroad  interests 
and  the  stock  yard  interests  looking  toward  the  removal  of  the  ter- 
minal charge  of  two  dollars  or  any  reduction  of  the  charges  made  by 
the  Union  Stock  Yards  &  Transit  Company  for  trackage,  yardage, 
etc. 

It  is  shown  by  the  representatives  of  the  railroad  companies  that 
the  two  dollars  charges  will  not  more  than  cover  the  trackage  charge 
imposed  by  the  Union  Stock  Yards  &  Transit  Company  and  the  cost 
of  furnishing  engines  and  crews  to  handle  the  stock  to  the  Union 
Stock  Yards,  and  until  there  is  some  legislation  on  this  subject  the 
Commission  is  unable  to  regulate  the  charges  made  by  the  Union 
.Stock  Yards  Company. 

It  is,  therefore,  ordered  that  the  petition  be  denied,  and  that  the 
schedule  of  maximum  rates  on  live  stock  be  and  remain  the  same  as 
now  in  force. 

Dated  Springfield,  Illinois,  September  8,  1898. 


BEFORE  THE  KAILROAD  AND  WAREHOUSE  COMMISSION  OF  THE  STATE 

OF  ILLINOIS. 


St.  Louis,  Peoria  &  Northern  Railway  Company 

vs. 
Peoria,  Decatur  &  Evansville  Railway  Company. 


Petition  to  cross  at  grade  at  Green  Valley. 


Messrs.  Conkling  &  Grout,  for  petitioner. 
Stevens' &  Horton,  for  respondent. 


This  application  having  come  on  to  be  further  heard  upon  the  pe 
tition  of  the  St.  Louis,  Peoria  &  Northern  Railway  Company  for  t 
vacation  of  the  order  entered  herein  August  23,  1897,  whereby  it  wag 


371 

ordered  that  an  overhead  crossing  be  constructed  at  the  place  indi- 
cated in  the  original  petition,  and  that  in  lieu  thereof  the  said  peti- 
tioner be  allowed  to  cross  with  its  track  the  main  line  and  track  of 
the  respondent  at  grade,  and  the  Commission  having  heard  the  evi- 
dence, and  the  respondent  not  objecting  to  the  change  in  said  orig- 
inal order,  as  prayed:  It  is  therefore  ordered  and  decided  that  the 
original  order  entered  herein  August  23,  1897,  requiring  the  con- 
struction of  an  overhead  crossing  at  the  place  described  in  said  peti- 
tion be,  and  the  same  is  hereby,  vacated. 

It  is  further  ordered  and  decided  that  the  petitioner,  the  St.  Louis, 
Peoria  &  Northern  Railway  Company,  have  leave  to  cross  with  its 
track  at  grade  the  track  of  the  respondent,  Peoria,  Decatur  &  Evans- 
ville  Railway  Company,  at  the  place  specified  in  the  original  petition 
on  file  in  this  cause,  right  of  way  for  such  crossing  being  first  ob- 
tained by  agreement,  or  in  the  manner  provided  by  law,  in  case  the 
parties  hereto  fail  to  agree. 

It  is  further  ordered  that  the  crossing  of  tracks  to  be  thus  formed 
be  protected  by  a  system  of  interlocking  signals  and  switches  to  be 
•agreed  upon  by  the  parties,  with  this  Commission's  approval,  if  the 
parties  are  able  to  agree,  the  first  cost  of  such  interlocking  machine, 
the  expense  of  putting  the  same  in,  the  expense  of  maintaining  the 
same  in  good  order  and  repair,  and  all  other  expenses  and  cost  of 
•such  interlocking  appliances,  and  of  putting  them  in,  and  the  future 
maintenance  thereof,  and  also  all  present  and  future  expenses  of  the 
operation  of  said  plant,  to  be  paid  for  by  the  said  St.  Louis,  Peoria 
&  Northern  Railway  Company,  its  successors  and  assigns.  Neither 
the  Peoria,  Decatur  &  Evansville  Railway  Company,  nor  its  Re- 
ceiver, nor  any  purchaser  or  future  owner  of  its  property,  to  be  at 
«,ny  expense,  present  or  future,  touching  the  construction,  mainte- 
nance, operation,  or  otherwise,  of  said  interlocking  plant  or  appli- 
ances. 

It  is  further  ordered  that  this  petition  be  held  under  consideration 
Tjy  the  Commission  pending  the  efforts  of  petitioner  and  respondent 
to  agree  upon  a  plan  of  interlocking. 

It  is  further  ordered  that  said  interlocking  plant  should  be  fully 
completed  and  in  operation  by  or  before  January  1,  1899. 


372 

BEFORE  THE  RAILROAD  AND  WAREHOUSE  COMMISSION  OF  THE  STATE 

OF  ILLINOIS. 


Citizens'  Coal  Mining  Company,  a  corporation, 

vs. 
Chicago  &  Alton  Railroad  Company. 


Excess  Switching  Charges. 


APPEARANCES: 

For  Complainant,  Mr.  Wilson. 
For  Respondent,  Wm.  Brown. 


OPINION  BY  LINDLY,  CHAIRMAN. 

The  petitioner  in  this  case  avers  that  the  Chicago  &  Alton  Railroad 
Company  demanded  and  received  five  dollars  per  car  for  switching 
cars  loaded  with  coal  from  the  junction  of  the  said  Chicago  &  Alton 
Railroad  Company  with  the  St.  Louis,  Chicago  &  St.  Paul  Railway 
Company  to  the  Alton  Railway  &  Illuminating  Company,  which  is 
situated  on  the  line  of  the  said  Chicago  &  Alton  Railroad  Company, 
and  not  a  regular  station,  and  which  is  less  than  two  miles  from  the 
junction  aforesaid. 

The  respondent  did  not  deny  that  it  charged  five  dollars  per  car 
for  switching  carloads  of  coal  from  the  junction  aforesaid  to  the 
Alton  Railway  &  Illuminating  Company,  nor  that  the  distance  from 
the  said  junction  to  the  said  Alton  Railway  &  Illuminating  Company 
was  less  than  two  miles.  The  said  respondent  set  up  in  its  answer 
and  in  the  evidence  before  the  Commission,  as  a  reason  for  making 
said  excessive  charge  that  it  was  done  in  retaliation  for  the  said  St. 
Louis,  Chicago  &  St.  Paul  Railway  Company  charging  five  dollars 
per  car  for  switching  cars  from  the  junction  of  the  said  Chicago*& 
Alton  Railway  Company  to  manufacturing  establishments  situated 
on  the  line  of  the  said  St.  Louis,  Chicago  &  St.  Paul  Railway  Com- 
pany. 

The  evidence  in  this  case  sustains,  beyond  controversy,  the  peti- 
tion of  the  petitioner,  and  this  Commission  is  of  the  opinion  that 
this  case  comes  clearly  within  Rule  twenty-one  of  the  "Railroad  and 
Warehouse  Commissioners'  Revised  Schedule  of  Reasonable  Maxi- 
mum Rates  of  Charges  for  the  Transportation  of  Passengers  and 
Freight  on  all  the  Railroads  in  the  State  of  Illinois,"  and  that  the 
said  respondent  had  no  right,  nor  does  it  have  any  right,  to  charge 
more  than  the  maximum  rate  set  forth  in  said  Rule  twenty-one,  which 
reads  as  follows: 


373 

"The  reasonable  maximum  rate  for  switching  loaded  cars  for  dis- 
tances not  exceeding  three  miles  shall  be  two  dollars  per  car. 
Switching  includes  the  hauling  of  loaded  cars  from  the  station  yards, 
side  tracks,  elevators  or  warehouses  to  the  junctions  of  other  rail- 
roads when  not  billed  from  stations  on  its  own  road  to  said  junctions, 
and  from  junctions  of  other  railroads  to  the  stations,  side  tracks, 
elevators  and  warehouses  situated  on  the  tracks  owned  or  controlled 
by  the  railroad  companies  doing  said  switching;  it  is  that  transfer 
charge  ordinarily  made  for  moving  loaded  cars  for  short  distances 
for  which  no  regular  way-bill  is  made,  and  which  do  not  move  be- 
tween two  regularly  established  stations  on  the  same  road." 

It  is,  therefore,  ordered  and  decreed  by  the  Railroad  and  Ware- 
house Commission  of  the  State  of  Illinois,  that  no  charge  made  for 
switching  cars  loaded  with  coal  or  other  commodities  within  the 
City  of  Alton  shall  exceed  two  dollars  per  car,  when  said  switching 
is  within  the  limits  of  Rule  21,  above  set  forth. 

Dated,  Springfield,  Illinois,  December  6,  1898. 


BEFORE  THE  RAILROAD  AND  WAREHOUSE  COMMISSION  OF  THE  STATE 

OF  ILLINOIS. 


Boston  Water  and  Light  Company, 

vs. 
St.  Louis,  Chicago  &  St.  Paul  Railroad  Company. 


Excess  Switching  Charges. 


OPINION  BY  LINDLY  CHAIRMAN. 

The  complaint  in  this  case  was  filed  on  October  12,  1898.  The  re- 
spondent filed  its  answer  on  October  27,  and  the  matter  was  set  for 
hearing  in  Springfield,  Illinois,  on  December  6,  at  which  time  it  was 
heard,  both  complainant  and  respondent  being  represented. 

The  complainant  sets  forth  in  its  complaint  that  the  respondent,  a 
corporation  organized  and  doing  business  under  the  general  railroad 
law  of  the  State  of  Illinois,  has  been  persistently  violating,  within 
the  past  six  months,  Rule  21  of  the  "Railroad  and  Warehouse  Com- 
missioners' Revised  Schedule  of  Reasonable  Maximum  Rates  for  the 
Transportation  of  Passengers  and  Freight  in  the  State  of  Illinois," 
by  charging  the  complainant  herein  a  greater  sum  than  two  dollars 
per  car  for  switching  loaded  cars  in  the  City  of  Alton  for  distances 
not  exceeding  three  miles.  The  complainant  cites  several  particular 
instances  in  which  defendant  charged  it  in  excess  of  two  dollars  per 


374 

car  for  switching  loaded  cars  within  the  City  of  Alton  for  distances 
not  exceeding  three  miles.  The  complainant  further  sets  up  that  on 
divers  other  occasions  the  defendant  charged  it  more  than  two  dol- 
lars per  car  for  switching  loaded  cars  from  the  junctions  aforesaid  to 
complainant's  water  works;  and  that  said  water  works  are  in  said 
City  of  Alton  and  within  one  hundred  feet  of  defendant's  track  and 
less  than  two  miles  from  the  junctions  aforesaid. 

The  defendant,  in  its  answer,  admits  that  on  the  9th  day  of  July, 
1898,  a  car  loaded  with  cement,  shipped  to  said  City  of  Alton  over 
said  Cleveland,  Cincinnati,  Chicago  &  St.  Louis  Railway  and  con- 
signed to  complainant  at  said  City  of  Alton,  was  transported  by  the 
said  defendant  from  the  junction  of  said  defendant's  railroad  with 
the  railroad  of  said  C.,  C.,  C.  &  St.  L.  Ry.,  over  said  defendant's 
railroad  to  the  water  works  of  said  complainant;  and  that,  for  so 
transporting  said  car,  said  defendant  charged  and  required  said  com- 
plainant to  pay,  and  complainant  did  pay  to  defendant,  the  sum  of 
four  dollars  and  seventy-three  cents. 

Defendant  also  admits  that  on  the  17th  day  of  August,  1898,  a  car 
loaded  with  alum,  shipped  to  said  city  of  Alton  over  the  Chicago  & 
Alton  Railroad  and  consigned  to  complainant  at  said  city  of  Alton, 
was  transported  by  defendant  from  the  junction  of  said  defendant's 
railroad  with  the  railroad  of  said  Chicago  &  Alton  Railroad  Company 
over  said  defendant's  railroad  to  the  water  works  of  said  complainant; 
and  that,  for  so  transporting  said  car,  said  defendent  charged  and  re- 
quired the  complainant  to  pay,  and  the  complainant  did  pay  to  de- 
fendant, the  sum  of  six  dollars  and  seventy-seven  cents. 

As  to  the  allegation  in  said  complaint  that  on  divers  other  occa- 
sions the  defendant  charged  it — the  complainant — in  excess  of  the 
legal  rate  for  switching  loaded  cars  within  the  city  of  Alton,  the  de- 
fendant neither  admitted  nor  denied,  but  called  for  strict  proof. 

The  defendant,  in  its  answer,  further  admits  that  there  is  a  side 
track  to  the  water  works  belong  to  the  complainant,  but  avers  that 
the  said  side  track  belongs  to  and  is  a  component  part  of  the  tracks 
of  said  defendant. 

The  defendant,  in  its  answer,  sets  up  that  the  track  leading  from 
the  junction,  where  the  cars  were  transferred  to  the  works,  of  this 
company,  and  the  side  tracks  at  said  works  belong  to  and  are  a  part 
of  the  railroad  of  said  defendant  company. 

The  defendant,  further  answering,  states  that  the  charges  made 
against  and  collected  from  the  said  complainant  for  transporting  the 
cars,  as  alleged  in  said  complaint,  are  reasonable  and  necessary  for 
the  proper  maintenance  and  operation  of  defendant's  said  railroad. 

In  conclusion,  the  defendant  denies  that  it  has,  within  the  six 
months  last  past,  persistently  and  grossly  violated  Rule  21  of  the 
Railroad  and  Warehouse  Commission  of  the  State  of  Illinois. 

The  proof  in  this  case  fully  sustained  the  allegations  set  forth  in 
the  complaint  of  the  complainant.  It  was  proven  that  the  water 
works  belonging  to  the  complainant  were  situated  along  the  line  of 
the  defendant's  railroad,  in  the  city  of  Alton,  and  were  less  than  two 


375 

liles  from  the  junction  where  the  cars  were  transferred  from  other 
ailroads  to  the  railroad  of  the  defendant,  for  the  purpose  of  being 
witched  by  the  defendant  to  the  place  of  business  of  the  complain- 
nt. 

The  defendant  admitted  at  the  hearing,  (and  as  admitted  in  its  an- 
wer) ,  that  it  did  make  the  several  charges  set  forth  in  the  complaint, 
>ut  the  defendant  maintained  that  it  owned  the  tracks,  and  owned  the 
witch,  and  that  fact  gave  it  the  right  to  charge  the  complainant  the 
egular  "cents  per  hundred  pound"  rate,  as  set  forth  in  the  schedule 
f  maximum  rates  of  this  Commission. 

It  was  further  proven  that  in  billing  these  cars  to  the  complainant 
rom  the  junction  aforesaid  the  defendant  billed  them  to  the  first 
tation  beyond  the  works  of  the  complainant,  and  charged  the  com- 
ilainant  the  regular  cents  per  hundred  pound  rate  for  the  haul,  drop- 
ting  the  cars  off  on  the  side  track  of  the  said  complainant. 

The  defendant  averred  and  claimed  that  this  was  the  custom  and 
he  usual  manner  in  which  it  transacted  this  business;  that,  in  con- 
ideration  of  the  fact  it  owned  the  track,  it  therefore  had  a  right, 
inder  our  rules,  to  charge  the  several  amounts  paid  by  the  complain- 
nt  for  transporting  these  cars. 

Rule  21,  above  referred  to,  reads  as  follows: 

"The  reasonable  maximum  rate  for  switching  loaded  cars,  for  dis- 
tances not  exceeding  three  miles,  shall  be  two  dollars  per  car. 
Switching  includes  the  hauling  of  loaded  cars  from  the  station  yards, 
side  tracks,  elevators,  or  warehouses  to  the  junctions  of  other  rail- 
Toads  when  not  billed  from  stations  on  its  own  road  to  said  junctions, 
;and  from  junctions  of  other  railroads  to  the  stations,  side  tracks,  ele- 
'vators  and  warehouses  situated  on  the  tracks  owned  or  controlled  by 
;the  railroad  company  doing  said  switching;  it  is  that  transfer  charge 
'ordinarily  made  for  moving  loaded  cars  for  short  distances  for  which 
'no  regular  way-bill  is  made,  and  which  do  not  move  between  two 
'regularly  established  stations  on  the  same  road." 

From  this  rule  it  is  clearly  apparent  that  whenever  a  loaded  car  is 
aken  at  the  junction  of  anotl  er  railroad  to  be  transferred  to  any  side 
rack,  elevator  or  warehouse  situated  on  the  tracks  owned  or  con- 
rolled  by  the  railroad  company  taking  charge  of  such  car  at  said 
unction,  that  the  company  doing  said  transferring  shall  deliver  the 
lame  on  their  own  tracks  to  the  place  of  destination  for  two  dollars, 
provided  that  it  is  not  a  regularly  established  station  on  the  same 
•oad. 

The  evidence  in  this  case  showed  that  the  place  of  business  of  the 
complainant  is  not  a  regularly  established  station  on  the  line  of  the 
lefendant,  and  under  this  rule  it  is  clearly  evident  that  the  defendant 
;vas  violating  Rule  21  above  set  forth. 

ORDER. 

It  is  therefore  ordered  and  decreed  that  the  said  St.  Louis,  Chi- 
cago &  St.  Paul  R.  R.  Company,  the  defendant  herein,  shall  deliver 
ill  cars  taken  at  junctions,  where  within  the  distance  specified  in 


376 

Rule  21,  above  set  forth,  for  two  dollars,  and  that  the  switching 
charges  made  by  said  defendant  to  the  complainant  shall  not  exceed 
two  dollars  per  car  load  of  material  of  any  description  where  the 
switching  is  done  by  the  defendant  from  the  junctions  of  other  roads 
to  the  place  of  business  of  the  complainant. 

Dated  at  Springfield,  Illinois,  this  8th  day  of  December,  A.  D.  1898. 


BEFORE  THE  RAILROAD  AND  WAREHOUSE  COMMISSION  OF  THE  STATE 

OF  ILLINOIS. 


Illinois  Central  Railroad  Company, 
vs. 

Chicago  &  Eastern  Illinois  Railroad  Company  and  Indiana,  Decatur 
&  Western  Railway  Company. 


Petition  for  the  Protection  of  the  Crossing  of  said  roads  at 
Tuscola,  Illinois. 


APPEARANCE: 


John  C.  Drennan,  For  Petitioner. 

Will  H.  Lyford,  For  C.  &  E.  I.  R.  R.  Co.    For  I.  D.  &  W.  Ry.  Co. 


OPINION,  LINDLY,  CHAIRMAN. 

This  is  a  petition  for  the  protection  of  the  crossing  of  the  Illinois 
Central  Railroad  Company's  tracks  and  those  of  the  Chicago  &  East- 
ern Illinois  Railroad  Company's  and  the  Indiana,  Decatur  &  Western 
Railway  Company's  tracks,  at  Tuscola,  Illinois. 

Petition  was  duly  filed  and  notice  given  to  the  said  defendants,  as 
required  by  the  statute  of  Illinois. 

At  ten  o'clock,  a.  m.  this  day,  all  parties  interested,  by  their  re- 
spective representatives,  appeared  at  the  office  of  this  Commission,  at 
which  time  and  place  a  full  hearing  was  given  to  each  and  all  of  said 
parties; 

And  after  hearing  the  evidence  and  argument  on  behalf  of  the  re- 
spective parties  and  being  fully  advised  in  the  premises,  the  said 
Commission  finds: 

That  an  interlocking  device  is  a  public  necessity  at  the  said  rail- 
road crossing,  and  that  an  interlocking  system  should  be  constructed, 
maintained  and  operated  at  the  same; 

That  3  continuing  crossing  contract  exists  between  the  petitioner 
and  the  Chicago  &  Eastern  Illinois  Railroad  Company,  but  that  no 
such  contract  exists  between  the  petitioner  and  the  other  defendant, 
or  between  the  said  defendants. 


377 

DECISION. 

It  is  therefore  ordered  by  the  said  Commission  that  the  said  peti- 
tioner and  the  said  defendants  forthwith  proceed  to  protect  the  said 
railroad  crossing  at  Tuscola,  Illinois,  by  an  interlocking  device  ac- 
ceptable to  said  Railroad  and  Warehouse  Commission,  and  that  the 
same  shall  be  completed  within  ninety  days  from  this  date. 

It  is  further  ordered  by  said  Commission  that  each  of  said  rail- 
road companies  shall  pay  such  proportion  .of  the  cost  of  construct- 
ing, erecting  and  maintaining  the  said  interlocking  system  and  its 
appurtenances,  and  the  number  of  levers  used  in  operating  the 
switches,  signals  and  other  parts  of  said  interlocking  system  in  and 
for  the  respective  tracks  shall  bear  to  the  whole  number  of  levers  re- 
quired in  said  interlocking  system. 

It  is  further  ordered  by  the  said  Commission  that  the  Indiana, 
Decatur  &  Western  Railway  Company  shall  pay  one-third  of  the 
•cost  and  expense  of  operating  the  same;  that  the  Chicago  &  Eastern 
Illinois  Railroad  Company  shall,  owing  to  its  said  crossing  contract 
with  the  petitioner,  pay  the  remaining  two-thirds  of  the  cost  and  ex- 
pense of  operating  the  same,  so  long  as  said  two-thirds  shall  not  ex- 
ceed seventy  dollars  per  month,  but  in  case  said  two-thirds  shall  at 
any  time  exceed  seventy  dollars  per  month,  then  the  said  Illinois 
Central  Railroad  Company  shall  pay  one-half  of  such  excess  over  and 
above  said  seventy  dollars  per  month. 

Dated  at  Springfield,  Illinois,  this  third  day  of  May.  A.  D.  1899. 


BEFORE  THE  RAILROAD  AND  WAREHOUSE  COMMISSION  OF  THE  STATE 

OF  ILLINOIS. 


Rock  Island  &  Peoria  Railway  Company, 

vs. 
Davenport,  Rock  Island  &  Northwestern  Railway  Company. 


Petition  to  Cross  at  Grade. 


APPEARANCES: 


For  Petitioner,  Robert  Mather. 
For  Respondent,  Davison  &  Lane. 


OPINION  BY  LINDLY,  CHAIRMAN. 

The  Board  of  Railroad  and  Warehouse  Commissioners  of  the  State 
•of  Illinois,  after  hearing  the  evidence  in  the  above  entitled  cause, 
issue  the  following  order: 


378 

It  is  hereby  ordered  and  adjudged  that  the  the  defendant,  the  Dav- 
enport, Rock  Island  &  Northwestern  Railway  Company,  have  leave, 
and  is  hereby  empowered,  to  cross  the  main  line  and  tracks  of  the 
Rock  Island  &  Peoria  Railway  Company  at  grade  at  a  point  east  of 
Seventeenth  street  in  the  city  of  Rock  Island,  as  described  in  the  pe- 
tition of  the  Rock  Island  &  Peoria  Railway  Company,  and  further 
described  in  the  blue  print  exhibit  filed  with  the  petition  in  the 
office  of  the  Railroad  and  Warehouse  Commission  at  Springfield,. 
Illinois. 

It  is  further  ordered  that  the  crossing  be  not  protected  by  an  in- 
terlocking plant  at  this  time. 

It  is  further  ordered  that  the  Davenport,  Rock  Island  &  North- 
western Railway  Company  pay  all  the  expenses  of  the  cost  of  con- 
struction and  future  maintenance  of  said  crossing. 

It  is  further  ordered  that  the  Board  of  Railroad  and  Warehouse 
Commissioners  of  the  State  of  Illinois  shall  have  authority,  at  any 
future  time,  to  order  an  interlocking  plant  or  device  to  be  constructed 
at  said  crossing  of  the  Davenport,  Rock  Island  &  Northwestern  Rail- 
way Company  over  the  Rock  Island  &  Peoria  Railway  Company 
when,  in  their  judgment,  the  safety  of  the  public  demands  the  con- 
struction of  such  a  device;  and  that  the  cost  of  the  construction  of 
the  same  shall  be  adjusted  according  to  the  rules  of  the  Commission, 
as  in  cases  where  one  road  seeks  to  cross  another  at  the  time  of  the 
construction  of  the  crossing. 

Dated  at  Springfield,  Illinois,  June  14,  1899. 


BEFORE  THE  RAILROAD  AND  WAREHOUSE  COMMISSION  OF  THE  STATE 

OF  ILLINOIS. 


Lake  Erie  and  Western  Railroad  Company, 

vs. 
Illinois  Central  Railroad  Company. 


Petition  for  Addition  to  Tower  at  Paxton,  Illinois. 


APPEARANCES: 

For  Petitioner,  Thomas  H.  Perry. 
For  Respondent,  H.  Baker. 


OPINION  BY  LINDLY,  CHAIRMAN. 

This  was  a  case  brought  on  petition  filed  by  the  Lake  Erie  & 
Western  Railroad  Company  representing  that  they  were  the  owners 
and  operators,  jointly,  with  the  Illinois  Central  Railroad  Company 
of  the  interlocking  plant  composed  of  the  tower,  interlocking  ma- 
chine, signals,  connections,  etc.,  at  Paxton.  They  further  represented 


379 

in  their  petition  that  soon  after  the  construction  of  the  interlocking- 
plant,  to- wit:  in  the  summer  of  1898,  the  towerman's  view  of  the 
Lake  Erie  &  Western  Railroad  Company's  eastern  bound  trains  was 
obstructed  by  and  is  now  obstructed  until  the  trains  of  the  Lake 
Erie  &  Western  Railroad,  east  bound,  arrive  at  a  point  within  de- 
rail distance  of  the  crossing  by  the  remodeling  and  extending  of  a 
warehouse  building  on  a  lot  corner  at  the  northwest  corner  of  the 
intersection  of  said  railroad  company's  right  of  way.  The  Lake  Erie 
&  Western  Railroad  Company  further  set  forth  in  their  petition  that 
they  have  been  ready  and  desire  to  unite  with  the  Illinois  Central 
Railroad  Company  in  a  plan  and  the  cost  necessary  to  enable  the 
towerman  to  observe  the  Lake  Erie  &  Western  Railroad  Company's 
east  bound  trains  at  a  point  at  least  where  they  were  in  view  before 
this  obstruction  existed;  that  it  is  necessary,  in  order  to  secure  this 
view,  to  extend  the  tower  ten  feet  south,  according  to  plans  sub- 
mitted with  the  petition ;  that  the  total  cost  of  the  construction  of  the 
addition  to  the  tower  is  one  hundred  and  forty-five  dollars,  ($145.00). 

The  Illinois  Central  Railroad  Company  stated  that  the  present  lo- 
cation of  the  interlocking  tower  was  agreed  upon  when  the  plant  was 
constructed;  that  it  was  not  particularly  favorable  to  the  Illinois 
Central  Railroad  Company  for  the  reason  that  the  view  of  Illinois 
Central  Railroad  Company's  trains  from  the  south  was  shut  off  by 
the  Illinois  Central  freight  house  building,  which  had  been  in  that 
location  for  a  great  many  years;  stating  further  that  the  location  of 
the  tower  was  decided  by  the  Railroad  Commission  at  the  time  of 
its  construction;  that  it  was  approved  by  both  roads;  that  it  was  ac- 
cepted by  both  roads;  that  after  it  was  constrncted  the  Illinois  Cen- 
tral Railroad  Company,  to  secure  a  better  view  of  their  track,  removed 
their  freight  building  entirely  at  their  own  expense,  simply  that  the 
towerman  might  have  a  view  of  their  line  to  the  south,  claiming  that 
they  did  not  ask  the  Lake  Erie  &  Western  road  to  participate  in  that 
expense. 

The  evidence  was  heard  in  this  case.  The  evidence  shows  that  this 
elevator  is  constructed  upon  private  land  and  not  upon  the  right  of 
way  of  the  Lake  Erie  and  Western  Railroad.  The  Lake  Erie  and 
Western  Railroad  had  no  authority  to  control  the  building  when  con- 
structed nor  to  prohibit  the  building  of  the  same.  Nor  does  it  ap- 
pear from  the  evidence  that  the  Lake  Erie  and  Western  Railroad 
Company  participated  in  any  way  in  the  construction  of  this  eleva- 
tor. The  claim  that  the  Illinois  Central  presents,  that  it  became 
necessary  for  them  to  remove  their  freight  depot  that  the  towerman 
might  see  the  trains  from  the  south,  can  not  enter  materially  into 
the  decision  in  this  case,  for  the  reason  that  the  Railroad  Commission 
at  that  time  fixed  the  position  of  the  tower,  and  the  freight  depot  in 
question  was  upon  the  right  of  way  of  the  Illinois  Central  Railroad 
Company  and  they  had  entire  control  of  the  depot  and  could  move  it 
as  they  saw  fit,  and  the  Lake  Erie  and  Western  Railroad  Company 
could  not  be  asked  to  participate  in  the  expense  of  removing  an  ob- 
struction upon  the  right  of  way  of  the  Illinois  Central  Railroad  Com- 
pany which  obscured  the  view  of  the  towerman  of  no  train  on  their 
line  approaching  the  crossing. 


380 

If,  from  the  evidence,  it  did  appear  that  this  elevator  in  question 
was  constructed  upon  the  right  of  way  of  the  Lake  Erie  and  Western 
Railroad  Company,  or  was  constructed  at  the  request  or  behest  of  the 
Lake  Erie  and  Western  Railroad  Company,  or  they  were  part  owners 
of  the  elevator  building  itself,  owners  or  part  owners  of  the  land  upon 
which  the  elevator  was  constructed,  then  they  would  be  in  the  same 
position  that  the  Illinois  Central  Railroad  Company  occupy  in  regard 
to  the  obstructed  view  caused  by  the  freight  depot  on  the  right  of 
way  of  the  Illinois  Central  Railroad  Company,  and  would  be  required 
to  remove  this  obstruction  at  their  own  cost,  and  the  Illinois  Central 
Railroad  Company  could  not  be  required  to  participate  in  the  ex- 
pense. 

In  view  of  these  facts,  the  Commission  are  of  the  opinion  that  in 
the  building  of  the  addition  to  the  tower  house  caused  by  this  ob- 
struction of  a  building  not  on  the  right  of  way  of  either  of  the  rail- 
roads, or  not  under  the  control  of  either  one  of  the  railroads,  that 
they  should  both  participate  in  the  same  proportion  in  the  expense 
of  this  addition  to  the  tower  that  they  did  in  the  original  construc- 
tion of  the  same. 

It  is  therefore  ordered  and  decreed  that  an  addition  be  made  to  the 
tower  house  of  the  interlocking  plant  at  the  crossing  of  the  Illinois 
Central  and  the  Lake  Erie  and  Western  Railroads  at  Paxton  accord- 
ing to  the  specifications  in  the  plan  presented  by  the  petitioner,  and 
that  each  railroad  pay  the  same  proportion  of  the  cost  of  the  con- 
struction of  the  addition  to  the  tower  house  that  they  paid  in  the 
construction  of  the  original  plant  itself. 

Dated  at  Springfield,  Illinois,  this  26th  day  of  July,  A.  D.  1899. 


BEFORE  THE  RAILROAD  AND  WAREHOUSE  COMMISSION  OF  THE  STATE 

OF  ILLINOIS. 


St.  Louis,  Vandalia  &  Terre  Haute  Railroad  Co. 

vs 
Indianapolis,  Decatur  &  Western  Railway  Co. 


Protection  of  Crossing  at  Casey. 


APPEARANCES: 

T.  J.  Golden,  for  Petitioner. 
G.  H.  Graves,  for  Respondent. 


OPINION  BY  LINDLY,  CHAIRMAN. 


This  is  a  case  brought  by  the  St.  Louis,  Vandalia  &  Terre  Haute 
Railway  Company  asking  for  the  interlocking  of  a  crossing  at  Casey, 
Illinois,  where  the  Indianapolis,  Decatur  &  Western  Railway  Com- 


381 

pany  crosses  the  St.  Louis,  Vandalia  &  Terre  Haute  Railroad  Com- 
pany at  grade.  The  petition  of  the  latter  company  was  filed  and  the 
required  notice  under  the  statute  given  to  the  officials  of  the  Indian- 
apolis, Decatur  &  Western  Railway  Company,  and  a  day  set  for  hear- 
ing the  case  at  the  office  of  the  Railroad  and  Warehouse  Commission 
at  Springfield.  Prior  to  the  hearing  of  the  case  the  representatives 
of  the  contending  lines  entered  into  an  agreement  with  one  another 
in  regard  to  the  cost  of  the  erection,  maintenance  and  operating  ex- 
penses of  the  said  interlocking  system  at  said  point. 

The  order  of  the  Board  will  be  in  compliance  with  the  agreement 
as  signed  by  the  representatives  of  these  companies.  That  as  soon 
as  possible  an  interlocking  device  shall  be  erected  at  the  crossing  of 
the  said  railways  at  Casey,  Illinois,  and  that  the  cost  of  erecting  the 
machine  and  tower  shall  be  divided  between  the  two  companies  on 
the  basis  of  levers  used  by  each.  That  the  expenses  of  the  erection 
and  maintenance  of  said  interlocking  plant  shall  be  divided  on  a 
basis  of  levers  used  by  each  company  on  a  plan  to  be  finally  approved 
by  the  Railroad  and  Warehouse  Commission  of  Illinois. 

It  is  further  ordered  that  the  operating  expenses  be  divided  be- 
tween the  companies,  one-half  to  each,  with  the  understanding  that 
so  long  as  the  Vandalia  is  able  to  use  its  telegraph  operators  at  that 
point  to  throw  the  levers  that  the  wages  of  these  operators  shall  be 
charged  one-half  to  the  Vandalia  Company  and  one-half  to  the  tower. 
The  one-half  chargeable  to  the  tower  shall  be  divided  between  the 
said  railroad  companies,  half  and  half  to  each. 

It  is  further  ordered  that  any  changes  made  in  the  switches  at  this 
crossing,  or  changes  in  the  track  of  either  of  the  lines  for  the  pur- 
pose of  lessening  the  number  of  levers  used,  shall  be  submitted  to 
the  Railroad  and  Warehouse  Commission  for  their  approval  before 
the  interlocking  device  is  erected. 

It  is  further  ordered  that  if  at  any  time  either  of  said  railroads 
should  desire  to  add  to  its  tracks  in  such  a  manner  as  to  require  ad- 
ditional levers  to  the  tower,  the  company  making  such  additions  to 
its  road  shall  be  required  to  pay  the  entire  cost  of  such  changes  as 
are  made  with  the  approval  of  the  Railroad  Commission. 

Dated  at  Springfield,  Illinois,  this  2d  day  of  August,  A.  D.  1899. 


382 

BEFORE  THE  RAILROAD  AND  WAREHOUSE  COMMISSION  OF  THE  STATE 

OF  ILLINOIS. 


St.  Louis,  Vandalia  &  Terre  Haute  Railroad  Co. 

vs. 
Jacksonville  &  St.  Louis  Railway  Co 


Protection  of  Crossing  at  Smithboro. 


APPEARANCES: 


T.  J.  Golden,  for  Petitioner. 
C.  M.  Stanton,  for  Respondent. 


OPINION  BY  LINDLY,  CHAIRMAN. 

This  case  was  brought  before  the  Commission  by  a  petition  pre- 
sented by  the  Receiver  of  the  St.  Louis,  Vandalia  &  Terre  Haute 
Railroad  Company  asking  that  the  crossing  at  Smithboro,  Illinois 
where  the  main  track  of  the  Jacksonville  &  St.  Louis  Railway  Com- 
pany crosses  the  main  track  of  the  St.  Louis,  Vandalia  &  Terre 
Haute  Railroad  Company  at  grade,  be  protected  by  proper  interlock- 
ing devices  and  appliances  to  secure  greater  safety  to  persons  and 
property,  and  further  that  the  Railroad  Commission  proportion  the 
cost  of  the  construction,  maintenance  and  operation  of  said  device 
between  the  respective  parties.  The  petition  was  duly  filed  and 
notice  given  to  said  defendant  as  required  by  the  statute  of  Illinois. 
The  defendant,  the  Jacksonville  &  St.  Louis  Railroad  Company,  filed 
an  answer  asking  that  such  device  be  not  ordered  for  reasons  set 
forth  in  said  answer.  The  Commission,  after  hearing  the  arguments 
of  the  attorneys  of  both  roads  and  the  evidence  in  the  case,  find: 

That  an  interlocking  system  should  be  constructed,  maintained 
and  operated  at  the  said  crossing  of  the  St.  Louis,  Vandalia  &  Terre 
Haute  and  the  St.  Louis  &  Jacksonville  Railway  Companies,  at 
Smithboro,  Illinois,  for  the  safety  of  the  public. 

It  is  therefore  ordered  by  the  Commission  that  said  companies, 
to-wit:  the  St.  Louis,  Vandalia  &  Terre  Haute  Railroad  Company 
and  the  Jacksonville  &  St.  Louis  Railroad  Company  forthwith  pro- 
ceed to  protect  said  railroad  crossing  at  Smithboro,  Illinois,  by  an 
interlocking  system  to  be  approved  according  to  the  statute  by  the 
Railroad  Commission. 


383 

It  is  further  ordered  by  the  Commission  that  each  of  said  railroad 
companies  shall  pay  such  proportion  of  the  cost  of  constructing, 
erecting  and  maintaining  the  said  interlocking  system  and  all  thereto 
appertaining  as  the  number  of  levers  that  shall  operate  the  switches 
and  signals  and  other  parts  of  said  interlocking  system  in  and  for 
the  respective  tracks  of  each  of  said  companies  shall  bear  to  the 
whole  number  of  levers  required  in  said  interlocking  system;  and 
each  of  said  companies  shall  pay  one-half  the  cost  of  operating  the 
said  interlocking  system. 

It  is  further  ordered  that  should  either  of  the  companies  aforesaid 
desire  to  add  to  the  number  of  levers  used  in  the  interlocking  device 
for  their  own  benefit,  that  said  company  desiring  the  addition  of 
such  levers  shall  pay  the  entire  cost  of  such  addition,  when  properly 
approved  by  the  Railroad  Commission  of  the  State  of  Illinois. 

Dated  at  Springfield,  Illinois,  this  2d  day  of  August,  A.  D.  1899. 


BEFORE  THE  RAIROAD  AND  WAREHOUSE  COMMISSION  OP  THE  STATE 

OP  ILLINOIS. 


Cleveland,  Cincinnati,  Chicago  &  St.  Louis  Railway  Co. 

vs. 
Terre  Haute  &  Peoria  Railway  Co. 


Protection  of  Crossing  at  Mackinaw. 


APPEARANCES : 


C.  A.  Paquette,  for  Petitioner. 

T.  J.  Golden  and  J.  J.  Turner,  for  Respondent. 


OPINION  BY  LINDLY,  CHAIRMAN. 

This  case  was  brought  before  the  Commission  by  a  petition  pre- 
sented by  the  Cleveland,  Cincinnati,  Chicago  &  St.  Louis  Railway 
Company,  asking  that  the  crossing  at  Mackinaw,  Illinois,  where  the 


384 

main  track  of  the  Terre  Haute  &  Peoria  Railway  Company  crosses 
the  main  track  of  the  Cleveland,  Cincinnati,  Chicago  &  St.  Louis 
Railway  Company  at  grade  be  protected  by  proper  interlocking  de- 
vices and  appliances  to  secure  greater  safety  to  persons  and  property, 
and  further  that  the  Railroad  Commission  proportion  the  cost  of  the 
construction,  maintenance  and  operation  of  said  device  between  the 
respective  parties.  The  petition  was  duly  filed  and  notice  given  to 
said  defendant  as  required  by  the  Statute  of  Illinois.  The  defend- 
ant, the  Terre  Haute  &  Peoria  Railway  Company,  filed  an  answer 
asking  that  such  device  be  not  ordered  for  reasons  set  forth  in  said 
answer.  The  Commission,  after  hearing  the  argument  of  the  attor- 
neys of  both  roads  and  the  evidence  in  the  case,  find: 

That  an  interlocking  system  should  be  constructed,  maintained 
and  operated  at  the  said  crossing  of  the  Cleveland,  Cincinnati,  Chi- 
cago &  St.  Louis  Railway  Company  and  the  Terre  Haute  &  Peoria 
Railroad  Company,  at  Mackinaw,  Illinois,  for  the  safety  of  the 
public. 

It  is  therefore  ordered  by  the  Commission  that  said  companies, 
to-wit:  the  Cleveland,  Cincinnati,  Chicago  &  St.  Louis  Railway 
Company  and  the  Terre  Haute  &  Peoria  Railway  Company  forth- 
with proceed  to  protect  said  crossing  at  Mackinaw,  Illinois,  by  an 
interlocking  system  to  be  approved  according  to  the  statute  by  the 
Railroad  Commission. 

It  is  further  ordered  by  the  Commission  that  each  of  said  railroad 
companies  shall  pay  such  proportion  of  the  cost  of  constructing, 
erecting  and  maintaining  the  said  interlocking  system  and  all  thereto 
appertaining  as  the  number  of  levers  that  operate  the  switches  and 
signals  and  other  parts  of  said  interlocking  system  in  and  for  the 
respective  tracks  of  each  of  said  companies  shall  bear  to  the  whole 
number  of  levers  required  in  said  interlocking  system,  and  each  of 
said  companies  shall  pay  one-half  of  the  cost  of  operating  the  said 
interlocking  system. 

It  is  further  ordered  that  should  either  of  the  companies  aforesaid 
desire  to  add  to  the  number  of  levers  used  in  the  interlocking  device 
for  their  own  benefit,  that  said  company  desiring  the  addition  of  such 
levers  shall  pay  the  entire  cost  of  such  addition  when  properly 
approved  by  the  Railroad  Commission  of  the  State  of  Illinois. 

Dated  at  Springfield,  Illinois,  this  2d  day  of  August,  1899. 


385 

BEFORE  THE  BOARD  OF  RAILROAD  AND  WAREHOUSE  COMMISSIONERS 
OF  THE  STATE  OF  ILLINOIS. 


The  Wabash  Railroad 

vs. 
The  Indiana,  Illinois  &  Iowa  Railroad. 


Protection  of  Crossing  at  Reddick. 


APPEARANCES: 

B.  C.   Winston,  for  Petitioner. 
R.  J.  Carey,  for  Respondent. 


OPINION  BY  LINDLY,  CHAIRMAN. 

This  case  was  brought  before  the  Commission  by  a  petition  pre- 
sented by  the  Wabash  Railroad  Company  asking  that  the  crossing- 
at  Reddick,  Illinois,  where  the  main  track  of  the  Indiana,  Illinois  & 
Iowa  Railroad  Company  crosses  the  main  track  of  the  Wabash  Rail- 
road Company  at  grade,  be  protected  by  proper  interlocking  devices 
and  appliances  to  secure  greater  protection  to  persons  and  property ; 
and  further,  that  the  Railroad  Commission  proportion  the  cost  of 
construction,  maintenance  and  operation  of  said  device  between  the 
respective  parties.  The  petition  was  duly  filed  and  notice  given  to  de- 
fendant as  required  by  the  statute  of  Illinois. 

The  Commission  proceeded  to  view  the  crossing  and  fixed  the  date 
for  hearing  the  case.  On  August  1,  1899,  the  case  was  heard  before 
the  Commission,  both  companies  being  represented,  and  submitted 
arguments  orally  and  filed  exhibits.  The  Commission,  having  had 
the  case  under  advisement,  found: 

That  an  interlocking  system  should  be  constructed,  maintained  and 
operated  at  the  said  crossing  of  the  Wabash  Railroad  and  the  Indiana, 
Illinois  &  Iowa  Railroad  at  Reddick,  Illinois,  for  the  safety  of  the 
public. 

It  is  therefore  ordered  by  the  Commission  that  said  companies, 
to-wit:  The  Wabash  Railroad  Company  and  the  Indiana,  Illinois  & 
Iowa  Railroad  Company,  forthwith  proceed  to  protect  said  crossing 
at  Reddick,  Illinois,  by  an  interlocking  system  to  be  approved  ac- 
cording to  the  statute  by  the  Railroad  Commission. 

It  is  further  ordered  by  the  Commission  that  each  of  said  railroad 
companies  shall  pay  such  proportion  of  the  cost  of  construction^, 
erecting  and  maintaining  the  said  interlocking  system  and  all  thereto 
— 25  O. 


386 

appertaining  as  the  number  of  levers  that  shall  operate  the  switches 
and  signals  and  other  parts  of  said  interlocking  system,  in  and  for 
the  respective  tracks  of  each  of  said  companies,  shall  bear  to  the 
whole  number  of  levers  required  in  said  interlocking  system,  and 
each  of  said  companies  shall  pay  one-half  of  the  cost  of  operating 
the  said  interlocking  system. 

It  is  further  ordered  that  should  either  of  the  companies  aforesaid 
desire  to  add  to  the  number  of  levers  used  in  the  interlocking  device 
for  their  own  benefit,  that  said  company  desiring  the  addition  of  such 
levers  shall  pay  the  entire  cost  of  such  addition  when  properly  ap- 
proved by  the  Railroad  Commission  of  the  State  of  Illinois. 

Dated  at  Chicago,  Illinois,  this  5th  day  of  August,  A.  D.  1899. 


BEFORE  THE  RAILROAD  AND  WAREHOUSE  COMMISSION  OP  THE 
STATE  OF  ILLINOIS. 


John  Miller 

vs. 
Cleveland.  Cincinnati,  Chicago  &  St.  Louis  Railway  Company. 


Complaint  for  Overcharge  of  Freight  Rates. 


APPEARANCES: 

For  Petitioner,  George  L.  Zink. 
For  Respondent,  G.  F.  McN  ulty. 


OPINION  BY  LINDLY,  CHAIRMAN. 

The  complaint  in  this  case  was  filed  by  John  Miller  against  the 
railroad  company,  charging  that  the  complainant,  Miller,  was  engaged 
in  business  at  Hornsby,  in  the  purchase  and  sale  of  grain,  live  stock 
and  of  coal  in  car  load  lots;  that  he  purchased  his  coal,  during  the 
time  covered  by  the  complaint,  of  the  Consolidated  Coal  Company 
of  St.  Louis  at  its  mine  located  on  defendant's  line  of  road  one  and 
one-third  miles  west  from  Hornsby  station;  that  the  cars  of  coal 
were  hauled  by  the  defendant  railroad  company  from  said  mine  over 
its  road  to  Hornsby,  a  regular  station  on  said  railroad,  and  placed  on 
the  switch  for  the  use  of  complainant.  The  moving  of  the  loaded 
cars  of  coal  from  Hornsby  mine  to  Hornsby,  under  the  proof,  is 
shown  to  have  been  done  by|the  defendant  railroad  company's  regu- 
lar trains.  The  proof  shows  that  there  is  no  station  at  the  Hornsby 
mine.  The  proof  further  shows  that  the  coal  mine  in  question  was 


387 

over  a  mile  beyond  the  switching  limits  at  Hornsby  station.  After 
the  loaded  cars  of  coal  were  placed  upon  the  siding  at  Hornsby  sta- 
tion they  were  unloaded  at  the  coal  house  of  the  complainant,  or  in 
trucks  and  wagons,  and  were  retailed  by  the  complainant  from 
Hornsby  station.  The  evidence  in  this  case  further  shows  that  the 
complainant,  Miller,  signed  a  statement,  which  is  in  the  form  of  a 
request,  to  switch  from  Hornsby  Illinois  mine  to  Hornsby,  Illinois, 
giving  the  car  number  and  the  initial  of  the  car  desired  to  be 
handled.  Upon  this  statement  was  placed  a  rate  by  the  railroad 
company  for  the  handling  of  each  car:  "Switching  $2.50,  rental  of 
car  $2.00,"  making  a  total  charge  of  $4.50  for  handling  each  loaded 
car  from  the  mine  to  Hornsby  station,  a  distance  of  one  and  one- 
third  miles. 

It  is  contended  that  under  Rule  23  of  the  schedule  of  rates  made 
by  the  Board  of  Railroad  and  Warehouse  Commissioners,  which  pro- 
vides a  switching  charge  of  two  dollars  for  handling  loaded  cars  a 
distance  not  exceeding  three  miles  from  the  station  yards,  side  tracks, 
elevators  or  warehouses  to  the  junctions  of  other  railroads,  when  not 
billed  from  stations  on  its  own  road  to  said  junctions,  and  from  junc- 
tions of  other  railroads  to  the  stations,  side-tracks,  elevators  and 
warehouses  situated  on  the  tracks  owned  or  controlled  by  the  rail- 
road company  doing  said  switching;  that  there  was  an  overcharge  in 
this  case  of  $2.50  on  each  car.  If  the  transportation  of  a  loaded  car 
from  Hornsby  mine  to  Hornsby  station  came  within  this  rule,  the 
contention  of  the  complaint  would  be  true,  and  there  would  clearly 
be  an  overcharge.  While  it  is  true  that  the  railroad  company  in  this 
case  have  required  the  complainant  to  sign  a  statement  purporting 
on  its  face  to  be  partially  a  switching  charge  and  partially  for  the 
rental  of  the  car,  yet  that  does  not  constitute  a  charge  for  the  mov- 
ing of  the  cars  in  question  from  the  Hornsby  mine  to  Hornsby  sta- 
tion, under  this  rule,  a  switching  charge.  A  casual  reading  of  the 
rule  will  clearly  show  that  the  facts  in  this  case  do  not  bring  the 
movement  of  these  cars  complained  of  under  a  switching  charge. 
The  railroad  company  would  have  a  perfect  right,  under  the  facts  in 
this  case,  to  charge  the  regular  distance  tariff  rate  for  transporting 
the  cars  in  question  from  the  mine  at  Hornsby  to  Hornsby  station. 
The  regular  rate  for  a  distance  of  one  and  one-third  miles  on  a  car 
of  coal  would  be  over  $6.00  a  car.  The  railroad  charged  in  this  case 
$4.50,  which  is  less  than  the  rate  that  the  railroad  company  could 
charge  under  the  schedule  of  rates  fixed  by  the  Railroad  and  Ware- 
house Commission,  hence  there  is  no  overcharge  in  this  case. 

Counsel  for  complainant  in  this  case  have  a  misconception  of  the 
meaning  of  Rule  23  governing  the  switching  of  loaded  cars.  The 
handling  of  loaded  cars  for  a  distance  not  exceeding  three  miles,  of 
itself,  does  not  determine  that  it  is  switching  within  the  meaning  of 
this  rule;  there  must  be  many  other  conditions  existing  in  order  to 
constitute  it  a  switching  charge.  The  handling  of  a  loaded  car  from 
any  factory  or  mine  on  the  line  of  a  railroad,  for  any  distance, 
whether  it  be  one  inile  or  ten,  to  a  regular  station  on  the  line  of  the 
same  railroad,  there  to  be  delivered  to  the  consignee,  does  not  come 


388 

within  the  meaning  of  switching,  as  defined  by  Rule  23,  especially 
when  the  station  to  which  it  is  hauled  is  the  end  of  the  haul  and 
final  delivery  of  the  commodity  in  the  car. 

The  Commission,  therefore,  find  that  the  handling  of  the  cars  in 
question  is  not  switching  within  the  meaning  of  Rule  23,  and  there- 
fore the  complaint  is  dismissed. 

Dated  at  Springfield,  Illinois,  this  23d  day  of  October,  A.  D.,  1899. 


BEFORE  THE  RAILROAD  AND  WAREHOUSE  COMMISSION  OF  THE  STATE 

OF  ILLINOIS. 


Petition  for  Order  for  Interlocking  Plant  at  Arcola,   by  Illinois 

Central  Railroad  Company  and  Terre  Haute  and 

Indianapolis  Railroad  Company. 


APPEARANCES: 


For  Petitioner — J.  F.  Wallace. 

For  Respondent— V.  T.  Malott.  \ 


ORDER  BY  LINDLY,  CHAIRMAN. 


On  the  petition  filed  before  the  Railroad  and  Warehouse  Commis- 
sion, presented  by  the  Illinois  Central  Railroad  Company  and  the 
Terre  Haute  and  Indianapolis  Railroad  Company,  asking  for  an  or- 
der to  provide  for  the  construction,  operation  and  maintenance  of  an 
interlocking  plant  at  Arcola,  Illinois,  the  said  parties  to  the  petition 
having  agreed  that  an  order  should  be  entered  for  the  construction 
of  the  plant  as  above  described,  it  is  therefore, 

Ordered  and  decreed  by  the  Railroad  and  Warehouse  Commission 
of  the  State  of  Illinois  that  an  interlocking  plant  be  constructed  in 
accordance  with  the  laws  of  the  State  and  the  rules  of  said  Railroad 
and  Warehouse  Commission,  under  the  supervision  of  the  Consulting 
Engineer  of  said  Commission;  and  that  the  cost  of  the  construction 
and  maintenance  of  said  plant  be  divided  between  the  said  Illinois 
Central  Railroad  Company  and  the  Terre  Haute  and  Indianapolis 
Railroad  Company  on  the  basis  of  the  number  of  levers  necessary  to 
control  the  switches,  derails  and  signals  in  or  adjoining  the  tracks  of 
each  company,  respectively;  and  that  the  expense  of  operation  of 
said  plant  be  divided  half  and  half  between  the  two  said  companies. 

Dated  at  Springfield.  Illinois,  this  7th  day  of  November.  A.D  ,  1899. 


389 
ORDER. 


IN  RE-INTERLOCKING  DEVICES. 


ORDER  BY  LINDLY,  CHAIRMAN. 


After  having  careful  examinations  made  and  heard  reports  bearing 
on  the  use  and  safety  of  the  old  style  wheel  interlocking  machines 
that  have  been  in  use  in  this  State,  and  in  service  varying  from  nine 
to  ten  years,  it  is  the  opinion  of  the  Commission  that  their  use  is  un- 
reliable and  unsafe,  and, 

It  is  therefore  ordered  and  decreed  that  such  railroad  corpora- 
tions as  use  them,  or  who  may  be  responsible  for  their  use  at  grade 
railroad  crossings  in  this  State,  replace  said  wheel  machines  with 
better  and  more  modern  devices  by  July  1,  1900. 

Dated  at  Springfield,  Illinois,  this  7th  day  of  November,  A.  D.  1899. 


BEFORE  THE  RAILROAD  AND  WAREHOUSE  COMMISSION  OF  THE  STATE 

OF  ILLINOIS. 


William  Atzel, 

vs. 
Chicago  Terminal  Transfer  Railroad  Company. 


Complaint  and  Petition  Charging  Extortion,  and  Praying  that  De- 
fendant be  Compelled  to  Refund  Certain 
Alleged  Overcharges. 


APPEARANCES: 


For  Petitioner — I.  Ingenthron. 
For  Defendant — M.  Breeden. 


OPINION  BY  LINDLY,  CHAIRMAN. 


Complaint  was  filed  by  William  Atzel  against  the  railroad  com- 
pany setting  up  certain  overcharges  made  by  the  railroad  company 
at  different  times.  The  evidence  has  been  taken.  It'appears  that 
the  complainant  is  a  coal  and  wood  dealer  in  the  city  of  Chicago,  Illi- 
nois, with  places  of  business  at  475  and  477  Kedzie  avenue,  in  said 
city.  Running  alongside  of  said  places  of  business  the  defendant 


390 

has  a  track  upon  which  deliveries  of  the  shipments  in  question  were 
made  to  the  complainant.  This  track  was  called  the  Kedzie  avenue 
team  track.  The  shipments  consisted  of  coal  and  wood,  and  orig- 
inated in  other  states.  Most  of  the  consignments  consisted  of  vari- 
ous cars  of  coal,  which  originated  in  Pennsylvania. 

The  proof  shows  that  the  cars  of  coal  were  billed  to  one  Rend,  who 
was  a  wholesale  dealer  in  coal,  in  the  city  of  Chicago,  and  by  him 
were  sold  to  the  complainant,  Atzel,  in  car  load  lots.  The  defendant 
railroad  company  is  engaged  in  a  transfer  and  terminal  business, 
that  is,  in  handling  cars  from  foreign  roads.  The  cars  of  coal  in 
question  were  received  in  Chicago  by  Rend  or  others  as  the  con- 
signee, and  were  sold  by  them  and  handled  by  the  Transfer  Company 
to  the  complainant's  place  of  business. 

The  first  question  raised  in  this  case  that  we  desire  to  consider  is: 
was  the  handling  of  the  coal  cars  in  question  a  part  of  an  interstate 
haul,  and  has  the  Commission  jurisdiction  over  the  subject  matter  of 
this  complaint?  It  is  insisted  by  counsel  for  the  railroad  company 
that,  as  there  was  no  change  in  the  car  load  lot,  but  that  it  remained 
in  the  original  car,  the  package  undisturbed,  until  it  was  delivered 
to  the  complainant,  and  the  car  having  originated  in  a  foreign  stater 
was  solely  a  subject  of  interstate  commerce.  If  this  contention  be 
true,  then  it  would  not  be  necessary  for  us  to  consider  the  other 
question  in  the  case.  A  number  of  authorities  have  been  referred 
to,  to  sustain  the  contention  made  by  counsel  for  the  railroad  com- 
pany, but  we  do  not  consider  it  necessary  to  refer  to  many  of  them. 

In  the  case  under  consideration  the  coal  was  billed  to  Rend,  as  the- 
consignee  in  Chicago.  It  was  delivered  to  Rend  in  Chicago.  It  is 
true  it  was  not  unloaded  by  the  railroad  company  into  any  ware- 
houses, either  of  Rend's  or  of  the  company,  but  after  the  delivery  to 
Rend  it  was  sold  by  him  to  the  complainant.  It  is  true  as  a  general 
rule  that  merchandise,  being  once  started  upon  its  passage  from  one 
state  to  another,  is  subject  to  exclusive  regulation  by  Congress  until 
lost  in  the  general  mass  of  property  of  the  state  to  which  it  is  sent. 
This  principle  has  been  upheld  principally  in  what  is  known  as  the 
tax  cases  and  license  cases,  many  of  which  have  been  referred  to  by 
counsel  for  the  railroad  company. 

In  the  case  of  Welton  vs.  Missouri,  91  U.  S.  275,  the  Court  says: 
"That  it  would  be  premature  to  state  any  rules  which  would  be  uni- 
versal in  its  application  to  determine  when  the  commercial  power  of 
the  federal  government  over  a  commodity  has  ceased,  and  the  power 
of  the  state  has  commenced.  It  is  sufficient  to  hold  now,  that  the 
commercial  power  continues  until  the  commodity  has  ceased  to  be 
the  subject  of  discriminating  legislation  by  reason  of  its  foreign 
character.  That  power  protects  it,  even  after  it  has  entered  the 
state,  from  any  burdens  imposed  by  reason  of  its  foreign  origin." 

In  the  absence  of  such  considerations,  it  has  been  held  that,  for 
some  purposes,  goods  pass  from  federal  to  state  control  at  the  moment 
when  they  are  delivered  by  the  carrier  to  the  consignee.  Commerce 


391 

clause  of  the  federal  Constitution,  page  66.  Fuqua  vs.  Pabst  Brewing 
Company,  90  Texas,  298.  The  great  difficulty  that  has  arisen,  however, 
is  the  practical  application  of  the  general  rule. 

In  the  case  of  Brown  vs.  Maryland,  12th  Wheat.,  419,  Chief  Jus- 
tice Marshall  lays  down  the  rule,  "that  importation  of  goods  for  sale 
was  not  complete  until  the  goods  had  been  sold,  and  the  article 
could  not  be  considered  as  incorporated  with  the  general  mass  of 
property  of  the  state  while  still  remaining  in  the  first  hands  and  in 
the  original  package."  This  case  was  subject  to  great  criticism  and 
was  in  effect  overruled  by  subsequent  decisions.  But  in  the  case  of 
Leisy  vs.  Harden,  135  U.  S.,  100,  the  original  rule  laid  down  in  Brown 
vs.  Maryland  is  sustained. 

The  question  presented  by  this  record  does  not  involve,  necessarily, 
the  point  sustained  in  the  above  cases;  while  it  may  be  true  that 
upon  questions  of  the  right  to  sell  goods  in  the  original  package, 
although  the  sale  of  such  goods  are  prohibited  by  the  state  to  which 
they  are  shipped;  and  that  no  tax  can  be  levied  or  license  be  collected 
on  goods  until  they  have  become  a  part  of  the  general  mass  of  prop- 
erty in  the  state,  on  the  ground  that  it  is  a  matter  of  federal  con- 
trol under  the  commerce  clause  of  the  Constitution,  yet  we  are  of 
the  opinion,  in  this  case,  that  when  the  coal  in  question  was  received 
in  Chicago  by  Rend,  the  consignee,  that  that  ended  the  interstate 
haul,  so  far  as  questions  arising  out  of  the  switching  charges  and 
track  service  charges  made  by  the  defendent  in  the  case. 

The  defendant  is  engaged  within  the  State  of  Illinois  in  the 
handling  of  foreign  cars,  and  these  charges  for  handling  of  such  cars 
within  the  State  are  subject  to  regulation  by  the  Railroad  and  Ware- 
house Commission  of  the  State  of  Illinois.  The  charge  made  by  the 
Terminal  Railroad  Company  entered  into  and  formed  no  part  of  the 
charges  made  by  the  railroad  company  for  hauling  the  car  from 
Pennsylvania  to  Chicago.  The  Terminal  Transfer  Railroad  Com- 
pany of  Chicago  is  engaged  in  an  independent  business,  and  that  of 
furnishing  transfer  and  terminal  facilities  to  the  various  railroads 
and  to  coal  yards  and  other  industries  located  in  Chicago  which  its 
road  reaches.  To  hold  that  the  cars  received  by  and  handled  by 
them  from  foreign  railroads  in  original  car  load  lots  are  not  subject 
to  State  control,  simply  by  reason  of  the  fact  that  the  car  load  lot 
has  been  undisturbed,  would  practically  leave  the  Transfer  and  Ter- 
minal Company  subject  to  no  control  whatever  by  the  State,  and  it 
could  impose  any  charge  it  saw  fit  without  regard  to  the  rates  fixed 
by  the  Railroad  and  Warehouse  Commission.  In  adopting  this  view 
we  do  not  lose  sight  of  the  rule  laid  down  in  the  tax  and  license 
cases,  and  original  package  cases  referred  to,  but  hold  that  the  rule 
does  not  apply  to  the  facts  in  issue  as  shown  by  this  record. 

The  next  question  presented  is,  was  the  defendant  railroad  com- 
pany guilty  of  extortion  in  making  certain  charges  for  the  switching 
of  the  cars  in  question  and  the  use  of  the  team  track?  The  proof 
shows  that  only  117  cars  were  placed  upon  the  side  track  or  team 
track,  and  according  to  the  evidence  some  of  them  remained  there 
from  one  to  twenty-one  days  before  they  were  unloaded.  For  the 


392 

transportation  of  the  cars  to  and  from  the  side  track  or  team  track 
in  question,  the  railroad  company  has  made  a  charge  of  $3  per  car, 
and  also  a  charge  of  $1  for  the  use  of  the  car  and  team  track,  making 
a  total  of  $4  for  each  car  handled. 

It  is  contended  by  counsel  for  the  railroad  company  that  under  the 
act  creating  the  Railroad  and  Warehouse  Commission  that  there  are 
seven  different  services  for  which  rates  may  be  established,  six  of 
which  relate  to  the  transportation  of  freight.  While  perhaps  such  a 
division  may  be  considered  as  entering  into  the  transportation  of 
freight,  yet  in  our  opinion  the  various  services  referred  to  all  enter 
into  and  are  a  part  of  the  term  "transportation  of  freight."  Charge 
for  transportation  of  freight  includes  all  of  the  services  performed 
by  the  railroad,  such  as  hauling  the  car,  use  of  car,  and  reasonable 
use  of  main  and  side  tracks  at  points  of  destination.  It  is  apparent 
from  the  proof  in  this  case  that  in  some  instances  there  was  an  un- 
reasonable delay  in  the  unloading  of  the  cars  by  Atzel.  He  made 
use  of  some  of  the  cars  for  warehouse  purposes.  This  is  a  growing 
evil  at  large  terminal  points,  like  Chicago.  Loaded  cars  are  held  on 
side  tracks,  blocking  the  movement  of  trains  and  producing  a  car 
famine  over  the  State.  There  ought  to  be  some  remedy  for  this  con- 
dition. The  law  governing  questions  of  demurrage  charges  is  in  a 
very  unsettled  condition.  Whatever  may  be  the  opinion  of  the  Com- 
mission as  to  the  extent  of  this  evil,  our  own  court  has  refused  to 
sustain  these  charges. 

In  the  case  of  Chicago  &  Northwestern  R'y  Co.  vs.  Jenkins,  103 
Illinois,  590,  it  was  contended  that  the  railroad  company  had  a  right 
to  hold  the  property  until  its  charges  for  demurrage  were  paid.  It 
appeared  that  the  published  rules  and  regulations  of  the  company 
provided  for  the  payment  of  such  charges,  yet  the  court  says,  "the 
right  to  demurrage,  if  it  exists  as  a  legal  right,  is  confined  to  mari- 
time law,  and  only  exists  by  carriers  by  seagoing -vessels.  It  only 
exists  by  contract.  Chicago  &  Northwestern  R'y  Co.  vs.  Jenkins, 
103  Illinois,  599. 

Again,  in  the  case  of  the  C.,  C.,  C.  &  St.  L.  R'y  Co.  vs.  Lamm,  73 
App.,  592.  This  was  a  case  when  a  $1  charge  was  made  for  each 
day  or  fraction  of  a  day  after  forty-eight  hours'  notice  that  the  car 
remained  unloaded.  The  court  says:  "Railroad  companies  can  not 
create  in  their  favor  a  demurrage  lien  on  freight  not  removed  from  a 
car  within  a  short  time  by  simply  publishing  to  the  public  their  in- 
tention of  doing  so." 

Acquiescence  and  payment  of  such  charges  do  not  create  any  lia- 
bility against  the  consignee.  It  can  only  be  created  by  contract  or 
by  statute.  C.,  C.,  C.  &  St.  L.  R'y  Co.  vs.  Lamm,  73  App.,  599. 

The  Terminal  Company  had  no  right  to  impose  the  one  dollar 
charge,  but  under  the  facts  and  circumstances  as  shown  in  this  case, 
we  do  not  believe  it  constitutes  an  extortion  under  the  present  statute 
governing  extortions.  This  statute  is  a  penal  one,  and  must  be 
strictly  construed.  An  action  of  law  would  lie  to  recover  the  money 
paid,  but  such  a  case  has  not  been  made  out,  in  our  opinion,  as  would 
justify  a  prosecution  under  the  statute  for  extortion. 


393 

The  only  other  question  in  this  case  to  be  decided  is  the  question 
of  switching  charges  as  governed  by  Rule  23,  found  in  the  schedule 
of  reasonable  maximum  rates  of  charges  as  fixed  by  the  Railroad  and 
Warehouse  Commissioners  of  Illinois. 

The  evidence  in  this  case  shows  that  some  of  the  cars  in  question 
were  hauled  less  than  three  miles  by  the  road  delivering  them  to 
Kedzie  avenue.  Wherever  in  this  case  the  distance  that  the  car  was 
hauled  was  three  miles  or  less,  the  railroad  company  had  no  right 
under  that  rule  to  charge  more  than  two  dollars  for  switching  the 
car;  and  wherever  the  railroad  company  or  companies,  in  this  case, 
made  a  charge  of  more  than  two  dollars  for  switching  the  car  of  coal 
to  Kedzie  avenue,  where  the  distance  was  less  than  three  miles,  they 
were  guilty  of  extortion;  because  the  rule  clearly  sets  forth  that 
switching  includes  the  hauling  of  loaded  cars  from  "junctions  of 
other  railroads  to  stations,  yards,  side  tracks,  elevators,  and  warehouses 
situated  on  the  tracks  owned  and  controlled  by  the  railroad  company 
doing  said  switching."  It  is  equally  true  that  wherever,  in  this 
case,  the  distance  that  the  car  was  hauled  from  the  junction  point  to 
Kedzie  avenue  exceeded  three  miles,  that  the  railroad  company  haul- 
ing said  car  had  a  perfect  right,  and  were  entitled,  to  charge  the  reg- 
ular schedule  rates  as  fixed  by  the  Railroad  and  Warehouse  Commis- 
sion of  Illinois  in  their  schedule  of  reasonable  maximum  rates  of 
charges. 

Dated  at  Springfield,  Illinois,  this  5th  day  of  December,  A.  D.  1899. 


BEFORE  THE  RAILROAD  AND  WAREHOUSE  COMMISSION  OF  THE  STATE 

OF  ILLINOIS. 


Keeney  &  Little 

v. 
Toledo,  Peoria  &  Western  Railroad  Company. 


Discrimination. 


APPEARANCES: 


For  Petitioner,  Hamilton  &  Patton. 
For  Defendant,  W.  S.  Horton. 


OPINION  BY  LINDLY,  CHAIRMAN. 

This  is  a  complaint  filed  by  Keeney  &  Little  against  the  Toledo, 
Peoria  &  Western  Railroad  Company,  charging  that: 

I.     That  the  T.,  P.  &  W.  R.  R.  Co.  will  not  quote  rates  of  freight 
on  grain  to  points  known  as  Ohio  river  points. 


394 

II.  That  the  defendant  above  named  is  a  common  carrier  engaged 
in  the  transportation  of  freight  and  passengers  by  railroad,  and  as 
such  common  carrier  subject  to  the  law  of  the  State  of  Illinois. 

III.  That  the  T.,  P.  &  W.  R.  R.  Co.  will  not  receive  grain  con- 
signed  to  Ohio  river  points. 

IV.  That  the  T.,  P.  &  W.  R.  R.  Co.  will  not  switch  to  the  C.  &  E. 
I.  R.  R.  Co.  grain  in  car  lots  consigned  to  Ohio  river  points. 

V.  That  the  T.,  P.  &  W.  R.  R.  Co.  will  not  switch  to  the  C.  &  E. 
I.  grain  in  car  lots  at  all. 

VI.  That  with  the   exception  of   Brazil  block   coal,   the  T,,  P.  & 
W.  R.  R.  Co.  will  not  switch  bituminous  coal  in  car  lots  from  the  C. 
&  E.  I.  R.  R.  tracks  to  coal  sheds  on  their  lines  in  Watseka,  111. 

VII.  That  the  T.,  P.  &  W.  R.  R.  Co.  will  not  switch  anthracite 
coal  from  the  C.  &  E.  I.  R.  R.  tracks  to  coal  sheds  on  their  lines  in 
Watseka,  111. 

In  regard  to  the  first  and  third  charge,  that  the  T.,  P.  &  W.  R.  R. 
company  will  not  quote  rates  of  freight  on  grain  to  points  known  as 
Ohio  river  points  and  will  not  receive  grain  consigned  to  Ohio  river 
points,  we  hold  that  this  is  a  question  of  Inter  State  Commerce,  and 
that  it  is  wholly  without  the  province  of  this  Commission.  As  to 
the  other  charges,  they  can  properly  be  considered  together,  as  they 
really  involve  the  same  question,  viz. : 

As  to  whether  a  railroad  company  should  be  compelled  to  switch 
loaded  cars  from  an  industry  on  their  own  line  to  the  junction  of  an- 
other railroad,  and  whether  they  should  be  compelled  also  to  switch 
loaded  cars  from  a  junction  point  of  another  railroad  to  an  industry 
located  on  their  own  line,  as  set  forth  in  Rule  23  of  the  Schedule  of 
Reasonable  Maximum  Rates  of  Charges. 

Rule  23  provides  as  follows: 

"The  reasonable  maximum  rate  for  switching  loaded  cars  for  dis- 
tances not  exceeding  three  miles  shall  be  two  dollars  per  car.  Switch- 
ing includes  the  hauling  of  loaded  cars  from  the  station  yards,  side 
tracks,  elevators  or  warehouses  to  the  junctions  of  other  railroads 
when  not  billed  from  stations  on  its  own  road  to  said  junctions,  and 
from  junctions  of  other  railroads  to  the  stations,  side  tracks,  eleva- 
tors and  warehouses  situated  on  the  tracks  owned  or  controlled  by 
the  railroad  company  doing  said  switching;  it  is  that  transfer  charge 
ordinarily  made  for  moving  loaded  cars  for  short  distances  for  which 
no  regular  way-bill  is  made,  and  which  do  not  move  between  two 
regularly  established  stations  on  the  same  road." 

It  appears  from  the  evidence  that  the  elevator  and  coal  sheds  of  the 
complainants  are  situated  upon  the  side  track  of  the  T.,  P.  &  W.  R. 
R.  Company;  it  further  appears  from  the  evidence  that  this  side  track 
is  used  both  for  the  purpose  of  loading  grain  from  the  elevator  into 
the  cars,  and  also  for  receiving  loaded  cars  of  coal  at  complainants 
shed,  and  also  are  made  use  of  by  the  railroad  company  as  a  team 
track. 

The  fact  that  the  defendant  railroad  company  uses  the  side  track 
in  question  both  for  the  purpose  of  a  team  track  for  the  benefit  of  its 


395 

patrons,  as  well  as  a  side  track  for  the  benefit  of  the  industries  of  the 
complainants,  can  not  affect  the  question  at  issue.  If  the  railroad 
company  desires  to  make  such  double  use  of  the  side  track  in  ques- 
tion, that  is  a  matter  of  their  own  choice,  and  it  can  not  affect  the 
rights  of  the  complainants  in  the  use  of  the  side  track  in  question 
for  the  purposes  for  which  they  use  it.  So  far  as  the  complainants' 
rights  are  concerned  in  this  case,  the  use  by  the  railroad  company  of 
this  track  for  a  team  track  for  their  patrons  does  not  affect  the  rights 
of  the  complainants,  who  are  not  seeking  to  use  such  track  as  a  team 
track. 

Under  Rule  23  above  cited,  it  is  the  duty  of  the  railroad  company 
to  switch  loaded  cars  from  the  elevator  of  complainants  to  the  junc- 
tion point  with  the  C.  &  E.  I.  R.  R.  Company  for  a  switching  charge 
of  two  dollars,  as  provided  in  such  rule,  the  distance  being  within  the 
three  mile  limit. 

It  is  also  the  duty  of  the  defendant  railroad  company  to  switch  cars 
from  the  junction  point -with  the  O.  &  E.  I.  R.  R.  Company  to  the 
elevator  and  coal  sheds  of  the  complainants  situated  on  the  side  track 
in  question  for  the  same  charge. 

In  the  case  of  the  Mexican  Amole  Soap  Co.  vs.  P.  &  P.  U.  Ry.  Co. 
is  referred  to  by  counsel  for  defendant.  There  is  a  clear  distinction 
between  the  case  cited  and  the  one  at  issue.  It  appeared  in  the  case 
referred  to  that  the  delivery  was  made  upon  a  team  track.  The  proof 
in  that  case  showed  that  the  track  in  question  was  not  used  for  the 
purposes  of  a  side  track  to  an  industry,  but  was  used  purely  as  a  team 
track  for  the  delivery  of  commodities,  merchandise,  etc.,  to  the  pat- 
rons of  the  road.  The  distinction  in  this  case  is  obvious  as  well  as  in 
the  case  of  Brining  vs.  C.,  C.,  C.  &  St.  L.  Ry.  Co.,  also  cited. 

It  is  therefore  ordered  that  the  defendant,  the  T.,  P.  &  W.  R.  R' 
Co.,  be  and  they  are  hereby  required  to  switch  loaded  cars  for  the 
complainants  from  the  junction  point  of  their  road  with  the  C.  &  E. 
I.  R  R.  Company  to  the  elevator  and  coal  sheds  of  the  complainants, 
and  to  switch  loaded  cars  from  the  elevator  and  coal  sheds  of  the  com- 
plainants to  the  junction  of  their  line  with  that  of  the  C.  &  E.  I.  R. 
R.  Company  on  the  payment  of  a  switching  charge  of  two  dollars  as 
provided  in  said  Rule  23. 

Dated  at  Springfield,  Illinois,  this  5th  day  of  December,  A.  D.  1899. 


RULES  OF  PRACTICE 


Adopted  by  the  Railroad  and  Warehouse  Com- 
mission of  Illinois,  May  4,  1897. 


IN  FORCE  FROM  AND  AFTER  JUNE  1,  1897. 


399 


RULES  OF  PRACTICE. 


1. 

REGULAR  SESSIONS. 

The  regular  sessions  of  the  Commission  foi  hearing  contested  cases  and 
cases  under  the  interlocking  law  will  be  held  at  its  office  in  Springfield,  Illi- 
nois, on  Tuesday  after  the  first  Monday  in  each  month,  and  continue  from 
day  to  day  thereafter,  if  necessary,  until  the  business  of  such  meeting  is  fin- 
ished. But  if  the  day  above  designated  for  such  meeting  shall  at  any  time 
fall  upon  an  election  day,  or  a  legal  holiday,  then  the  meeting  shall  be  held 
upon  the  day  following. 

Sessions  for  receiving,  considering  and  acting  upon  petitions,  applications 
and  other  communications,  and  also  for  considering  and  acting  upon  any 
business  of  the  Commission,  other  than  contested  cases,  maybe  taken  up  and 
disposed  of  at  any  time  that  a  quorum  of!  the  Commission  may  be  present. 

2. 

SPECIAL  SESSIONS. 

Special  sessions  may  be  held  at  other  places,  when,  in  the  judgment  of  the 
Commission,  the  public  interest  requires  it. 

3. 

MEETINGS  IN  CHICAGO. 

The  Commission  shall  meet  at  the  office  of  the  Chief  Grain  Inspector,  in 
the  City  of  Chicago,  on  Thursday  after  the  first  Monday  in  each  month,  for 
the  purpose  of  auditing  the  bills  of  the  Grain  Department,  and  for  the  trans- 
action of  such  other  business  as  may  legally  come  before  it. 

4. 

COMPLAINTS. 

All  complaints  must  be  by  petition,  printed  or  written  (or  partly  printed 
and  partly  written) ,  setting  forth  briefly  the  facts  claimed  to  constitute  a  vio- 
lation of  the  law,  and  must  be  verified  by  the  petitioner,  or  by  some  officer, 
agent  or  corporation,  society  or  organization,  or  other  body  making  the  com- 
plaint, who  must  be  a  party  in  interest,  to  the  effect  that  the  allegations  of 
the  petition  are  true  to  the  best  of  the  knowledge  or  belief  of  the  affiant,  and 
may  be  sworn  to  before  any  officer  authorized  to  administer  paths  in  the 
State  of  Illinois.  The  name  of  the  carrier  or  carriers  complained  against 
mus.t  be  stated  in  full,  and  the  address  of  the  petitioner,  with  the  name  and 
address  of  his  attorney  or  counselor,  if  any,  must  appear  upon  the  petition. 


400 
5. 

SERVICE  OP  PETITION. 

The  Commission  will  cause  a  copy  of  the  petition,  with  notice  to  satisfy  or 
answer  the  same  within  a  specified  time,  to  be  served  personally  or  by  mail 
in  its  discretion,  upon  each  carrier  complained  against. 

6. 

ANSWERS. 

A  carrier  complained  against  must  answer  within  twenty  days,  unless  ex- 
tended, from  the  date  of  a  notice,  but  the  Commission  may,  in  a  particular 
case,  require  the  answer  to  be  served  within  a  shorter  time.  The  time  pre- 
scribed in  any  case  may  be  extended,  upon  good  cause  shown,  by  special 
order  of  the  Commission.  Original  answers  must  be  filed  with  the  Secretary 
of  the  Commission,  at  its  office  in  Springfield.  The  answer  must  admit  or 
deny  the  material  allegations  of  the  petition,  and  may  set  forth  any  addi- 
tional facts  claimed  to  be  material  to  the  issue.  The  answer  must  be  verified 
in  the  same  manner  as  the  petition.  If  the  carrier  complained  against  shall 
make  satisfaction  before  answering,  a  written  acknowledgment  thereof  must 
be  filed  by  the  complainant  or  petitioner,  and  in  that  case  the  effect  of  satis- 
faction, without  other  matter,  may  be  set  forth  in  the  answer.  If  satisfac- 
tion be  made  after  the  filing  and  service  of  an  answer,  a  supplementary 
answer,  setting  forth  the  facts  and  terms  of  the  satisfaction,  shall  be  filed 
with  the  Commission  and  served.  The  filing  of  an  answer,  however,  will  not 
be  deemed  an  admission  of  the  sufficiency  ot  the  petition,  but  a  motion  to  dis- 
miss for  insufficiency  may  be  made  at  the  hearing. 

7. 

SERVICE  OF  PAPERS. 

Copy  of  notices  or  other  papers  must  be  served  upon  the  adverse  parties- 
personally  or  by  mail;  and  when  any  party  has  appeared  by  attorney,  service 
upon  such  attorney  shall  be  deemed  proper  service  upon  the  party. 

8. 

AMENDMENTS. 

Amendments  to  any  petition  or  answer  in  any  proceeding  or  investigation 
may  be  allowed  by  the  Commission  in  its  discretion. 

9. 

EXTENSION  OP  TIME. 

Extension  of  time  may  be  granted  upon  the  application  of  any  party  to  the 
proceeding  in  the  discretion  of  the  Commission. 

10. 

STIPULATIONS. 

The  parties  to  any  proceeding  or  investigation  before  the  Commission  may, 
by  stipulation  in  writing  filed  with  the  Secretary,  agree  upon  the  facts,  or  any 
portion  hereof  involved  in  the  controversy,  which  stipulation  shall  be  re- 
garded as  evidence  on  the  hearing.  It  is  desired  that  the  facts  be  thus  agreed 
upon  whenever  practicable. 


401 
11. 

HEARINGS. 

Upon  issue  being  joined  the  Commission  will  assign  a  time  and  place  for 
hearing  the  case,  which  will  be  at  its  office  in  Springfield,  unless  otherwise 
ordered.  Witnesses  will  be  examined  orally  before  the  Commission,  and 
their  testimony  taken  down  and  filed  in  the  case,  unless  the  facts  be  agreed 
upon  as  provided  for  in  these  rules.  The  complainant  must  in  all  cases  estab- 
lish the  facts  alleged  to  constitute  a  violation  of  the  law,  unless  the  carrier 
complained  against  admits  the  same  or  fails  to  answer  the  petition.  Facts 
alleged  in  the  answer  must  also  be  proved  by  the  carrier  unless  admitted  by 
the  petitioner.  In  case  of  failure  to  answer,  the  Commission  will  take  such 
proof  of  the  facts  as  may  be  deemed  proper  and  reasonable,  and  make  such 
order  thereon  as  the  circumstances  of  the  case  require. 

12. 

WITNESSES  AND  SUBPCENAS. 

Subpoenas  requiriag  the  attendance  of  witnesses  will,  upon  the  application 
of  either  party,  or  upon  the  order  of  the  Commission,  be  issued  by  the  Secre- 
tary, under  the  seal  of  the  Commission.  Subpoenas  for  the  production  of 
books,  papers  or  documents  (unless  directed  to  issue  by  the  Commission  upon 
its  own  motion)  will  only  be  issued  upon  application  in  writing;  and  when  it 
is  sought  to  compel  witnesses,  not  parties  to  the  proceeding,  to  produce  such 
documentary  evidence,  the  application  must  be  sworn  to  and  must  specify  as 
nearly  as  may  be  the  books,  papers  or  documents  desired,  and  that  the  same 
are  in  possession  of  the  witness  or  under  his  control;  and  also  by  facts  stated 
in  said  application  show  that  they  contain  evidence  material  to  the  issue.  Ap- 
plications to  compel  a  party  to  the  proceedings  to  produce  books,  papers  or 
documents,  need  only  set  forth  in  a  general  way  the  books,  papers  or  docu- 
ments desired  to  be  produced,  and  that  the  applicant  believes  they  will  be  of 
service  in  the  determination  of  the  case. 

13. 

PROPOSED  FINDINGS. 

Upon  the  final  submission  of  the  case,  each  party  must  prepare  and  submit 
for  the  consideration  ot  the  Commission,  proposed  findings,  embracing  the 
material  facts  and  propositions  of  law  claimed  to  be  established  by  the  evi- 
dence. 

14. 

PRINTING  OP  PLEADINGS. 

For  convenience  in  reading  and  filing  it  is  requested  that  pleadings,  briefs 
and  other  papers  of  importance  be  printed  or  typewritten  whenever  practic- 
able, and  that  only  one  side  of  the  paper  be  used. 

15. 

COPIES. 

Copies  of  any  petition,  complaint  or  answer  in  any  matter  or  proceeding 
before  the  Commission,  or  of  any  order,  decision  or  opinion  by  the  Commis- 
sion will  be  furnished  without  charge  upon  application  to  the  Secretary  by 
any  person  or  party  to  the  proceeding.  Copy  of  testimony  will  be  furnished 
upon  such  terms  as  the  Commission  shall  prescribe.  Copies  of  blank  forms 
as  contained  in  these  rules  will  be  furnished  on  application  by  the  Secretary 
without  any  charge.  This  rule  shall  not  apply  to  copies  of  opinions,  orders 
or  other  papers  in  interlocking  or  crossing  cases. 

—26  O 


402 
16. 

ADDRESS  OF  THE  COMMISSION. 

All  complaints  concerning  anything  done,  or  omitted  to  be  done,  by  any 
common  carrier  and  all  petitions  or  answers  in  any  proceeding  or  application 
in  relation  thereto,  and  all  letters  and  telegrams  should  be  addressed  to  the 
chairman  of  the  Commission  at  Springfield,  Illinois,  unless  otherwise  specially 
directed. 

17. 

QUORUMS. 

Two  members  of  the  Commission  shall  constitute  a  quorum  for  the  transac- 
tion of  all  business  that  may  come  before  the  Commission, and  if  no  quorum  of 
the  Commission  be  present  on  any  day  named  in  these  rules  for  any  regular 
meeting  of  the  Commission,  and  there  are  causes  on  the  docket  ready  for 
hearing,  the  Secretary  of  the  Commission  shall  adjourn  such  meeting  from 
day  to  day  (noting  the  same  upon  the  record)  until  a  quorum  is  present  for 
transaction  of  business,  at  which  the  hearing  shall  be  proceeded  with  in  the 
same  manner  as  it  would  had  a  quorum  been  present  on  the  day  named  in 
the  rules  of  said  meeting.  When  the  Secretary  shall  be  aware  in  advance 
that  a  quorum  will  not  be  present  on  the  day  named  for  regular  meeting,  he 
shall,  as  far  as  practicable,  advise  all  interested  parties  by  letter  or  otherwise, 
of  the  fact,  and  also  let  them  know  on  what  day  a  quorum  is  expected  to  be 
present. 

18. 

MANNER  OF  CONDUCTING  CASES. 

In  all  contested  cases  the  petitioner  will  open  and  close  the  case.  Each 
party  to  the  hearing  will  be  allowed  to  introduce  such  evidence  as  is  admis- 
sible under  the  common  law  rules  of  evidence,  and  each  party  will  be  fully 
heard  in  argument  upon  all  points  of  the  case  by  the  counsel  or  other  repre- 
sentatives. 

19. 

PRACTICE. 

The  Commission  will  be  governed  by  the  practice  which  obtains  in  the 
Circuit  Courts  of  Illinois,  so  far  as  the  same  is  applicable. 


403 

FORMS. 

No.  1. — Complaint  Against  Carriers. 


\8B. 

).  J 


A.  B. 

vs. 
The KailroadCo. 

The  petition  of  the  above  named  complainant  respectfully  shows : 

I.  That  (here  let  complainant  state  his  occupation  and  place  of  business.) 

II.  That  the  defendant  above  named  is  a  common  carrier  engaged  in  the 
transportation  of  freight  and  passengers  by  railroad,  and  as  such  common 
carrier  is  subject  to  the  laws  of  the  State  of  Illinois. 

III.  That  (here  state  concisely  the  matters  complained  of) . 

Wherefore  the  petitioner  prays  that  the  defendant  may  be  required  to  answer 
the  charges  herein,  and  that  upon  a  final  hearing  hereof  the  commission  will 
make  such  order  in  the  premises  as  may  seem  meet. 

Dated  at ,  Illinois, day  of A.  D 

A.  B. 
Complainant'1 s  Signature. 

STATE  OF  ILLINOIS,  \ .... 
County.        jSSt 

A.  B.  being  duly  sworn,  upon  his  oath,  states  that  he  is  the  complainant 
in  this  proceeding,  and  that  the  matters  set  forth  in  the  foregoing  petition 
are  true  as  he  verily  believes. 

A.  B. 

Subscribed  and  sworn  to  before  me  this day  of A.  D.  19. ... 

C.  D.,  Justice  of  the  Peace. 
(Or  other  officer  authorized  to  administer  oaths.) 


FORMS. 

No.  2. — Answer . 


Iss. 


The Railroad  Co. 

ats. 
A.  B. 

The  above  named  defendant  for  answer  to  the  complainant  in  his  proceed- 
ing respectfully  states: 

I.    That  (here  follows  the  usual  admissions,  denials  and  averments.) 
Wherefore  the  defendant  prays  that  the  complaint  be  dismissed. 

The Railroad  Co. 

By  E.  F.  (Title  of  Officer.) 

STATE  OF \ 

County  of J&b> 

E.  P.  being  duly  sworn,  says  that  he  is  the of  the 

Railroad  Company,  defendant  in  this  proceeding,  and  that  the  foregoing  au- 
swer  is  true  as  he  verily  believes. 

E.  F. 

Subscribed  and  sworn  to  before  me  this day  of A.  D.  19  — 

C.  D.,  Justice  of  the  Peace. 
(Or  other  officer  authorized  to  administer  oaths.) 


404 


RULES  OF  PRACTICE  IN  CROSSING  AND   INTERLOCKING  CASES. 


I. 

For  the  hearing  of  cases  arising  under  the  act  approved  May  27,  1889,  con- 
cerning crossings,  and  the  act  approved  June  2, 1891,  concerning  interlocking, 
there  shall  be  held  at  the  office  of  the  Commission,  in  the  State  House,  in 
Springfield,  a  regular  meeting  of  the  Commission  on  the  Tuesday  after  the 
first  Monday  in  each  month,  and  continuing  from  day  to  day  thereafter,  if 
necessary,  until  the  business  of  such  meeting  is  finished;  but  if  the  day  above 
designated  for  such  meeting  shall  at  anytime  fall  upon  a  general  election  day 
or  legal  holiday,  then  the  meeting  shall  be  held  upon  the  day  following. 

II. 

If  no  quorum  of  the  commission  shall  be  present  on  any  day  named  in  these 
rules  for  any  regular  meeting  of  the  Commission,  and  there  are  causes  on  the 
docket  ready  for  hearing,  the  Secretary  of  the  Commission  shall  adjourn  such 
meeting  from  day  to  day  (noting  the  same  upon  the  record),  until  a  quorum 
is  present  for  the  transaction  of  business,  at  which  time  the  hearing  shall  be 
proceeded  with  in  the  same  manner  as  they  would  had  a  quorum  been  pres- 
ent on  the  day  named  in  the  rules  for  said  meeting.  When  the  Secretary 
shall  be  aware  in  advance  that  for  any  reason  a  quorum  will  not  be  present 
for  the  transaction  of  business  on  the  day  named  for  a  regular  meeting,  he 
shall,  so  far  as  practicable,  advise  all  interested  parties  by  letter  or  otherwise 
of  the  fact,  and  also  let  them  know  on  what  day  a  quorum  is  expected. 

III. 

Upon  the  filing  of  any  petition  in  pursuance  of  any  of  the  provisions  of 
either  of  such  acts,  the  Secretary  of  the  Commission  shall  at  once  issue  and 
cause  to  be  served  upon  or  delivered  to  the  defendant  in  such  petition  such 
notice  as  the  law  requires,  or  as  may  be  prescribed  by  the  Commission;  and 
the  Secretary  shall  also,  for  the  better  information  of  such  defendant,  mail  to 
its  president  or  general  manager  a  copy  of  the  petition;  but  a  failure  by  de- 
fendant to  receive  the  letter  shall  not  be  taken  as  a  failure  of  notice. 

IV. 

If  the  notice  provided  for  in  the  last  rule  shall  be  served  upon  or  received 
by  the  defendant  ten  days  before  the  next  regular  meeting  of  the  Commission 
as  above  established,  the  case  shall  stand  for  hearing  at  that  meeting;  but  if 
such  notice  shall  be  served  or  received  less  than  ten  days  before  such  regular 
monthly  meeting,  then  such  petition  shall  stand  for  hearing  at  the  next  regu- 
lar monthly  meeting  succeeding  that  one. 


405 

V. 

In  the  case  of  any  proceeding  begun  under  the  said  interlocking  act  of  1891, 
by  a  citation  issued  by  order  of  the  Commission  instead  of  by  petition,  the 
Secretary  shall  make  such  citation  returnable  at  the  next,  regular  monthly 
meeting  of  the  Commission,  if  the  same  shall  take  place  ten  days  or  more 
after  the  time  of  issuing  such  citation;  but  if  such  citation  shall  not  be  served 
upon  any  defendant  therein  named  ten  days  or  more  prior  to  the  first  day  of 
the  next  meeting,  then  such  citation  shall  stand  for  hearing  at  the  next  regu- 
lar meeting  succeeding. 

VI. 

Such  answer  as  any  defendant  may  desire  to  make  to  any  petition,  or  such 
return  as  any  company  may  desire  to  make  to  any  citation  which  may  be 
issued,  shall  be  filed  in  the  office  of  the  Commission  not  later  than  the  morn- 
ing of  the  day  upon  which  said  petition  or  citation  stands  for  hearing  upon  the 
docket  in  accordance  with  these  rules,  and  such  answer  or  returns  shall  close 
the  written  pleadings  in  the  case. 

VII. 

Cases  shall  stand  for  hearing  at  such  regular  meetings  in  the  order  of  their 
numbers  unless  the  Commission  shall  for  good  cause  vary  such  order;  and  in 
the  general  manner  of  conducting  hearings,  producing  testimony,  etc.,  the 
Commission  will  be  governed  by  the  general  system  of  practice  which  obtains 
in  the  Circuit  Courts  of  Illinois,  so  far  as  the  same  is  applicable  to  these  pro- 
ceedings. 

VIII. 

All  evidence  offered  on  any  such  hearing  shall  be  reported  in  full  by  the 
stenographer  of  the  Commission,  who  shall  write  the  same  out  correctly  in 
typewriting,  and  file  the  same  for  reference  with  the  papers  in  the  case  in 
which  the  same  is  taken. 

IX. 

Every  case  which  may  for  any  reason  remain  on  the  docket,  not  finally  dis- 
posed of  at  the  conclusion  of  any  such  regular  meeting  of  the  Commission, 
shall  stand  continued  to  the  next  regular  meeting,  and  the  secretary  shall 
enter  an  order  to  that  effect,  in  such  case,  without  specific  action  or  instruc- 
tions by  the  Commission. 

X, 

The  Secretary  of  the  Commission  is  hereby  empowered,  without  further 
specific  order,  to  issue  from  time  to  time,  under  his  hand  and  the  seal  of  the 
Commission,  such  subpoenas  for  witnesses  in  any  cause  arising  under  either 
of  said  acts  as  any  party  thereto  may  request  to  be  issued.  Said  Secretary 
shall  advance  no  fees  for  the  service  of  any  such  subpoenas,  but  leave  the 
party  calling  for  the  same  to  serve  it  or  procure  it  to  be  served  as  he  shall 
think  fit. 

XI. 

In  every  trial  had  under  these  rules,  the  petitioner  will  open  and  close  the 
case.  Each  party  to  the  hearing  will  be  allowed  to  introduce  such  evidence 
as  to  facts  and  expert  questions  as  may  be  thought  necessary,  provided  the 
same  is  admissible  under  the  common  law  rules  of  evidence;  and  each  party 
will  be  fully  heard  in  argument  upon  all  points  of  the  case  by  counsel  or  other 
representative,  but  no  petition  for  rehearing  will  be  entertained  in  any  such 
case,  unless  the  right  to  present  the  same  is  expressly  reserved  in  the  final 
decree  or  order  of  the  Commission. 


406 

XII. 

The  petition  mentioned  in  section  1  of  this  act  of  1891,  concerning  inter- 
locking, will  be  deemed  sufficient  if  in  substantially  the  following  form : 

To  the  Railroad  and  Warehouse  Commission  of  the  State  of  Illinois: 

The ,  Rail Company  represents  that 

it  owns  and  operates  a  certain  railroad  extending  from to 

within  the  State  of  Illinois;  that  the  main  track  of  said 

railroad  crosses  at  grade  the  main  track  of  the 

Rail Company 

in  the  County  of. ;  that  petitioner  desires 

to  unite  with  the  said Kail 

Company  in  protecting  said  crossing  with  proper  devices  and  appliances,  thus 
securing  greater  safety  to  persons  and  property,  and  enabling  trains  to  pass 
said  crossing  without  stopping,  but  is  unable  to  agree  with  said  company  upon 
a  plan  of  the  same,  that  the  public  good  requires  that  said  crossing  be  so  pro- 
tected: and  petitioner  files  herewith  a  plat  showing  the  location  of  the  tracks 
involved  in  said  crossing,  and  make  said  plat  a  part  of  this  petition 


In  consideration  of  the  premises,  petitioner  prays  this  Commission  to  give 

notice  to  the  said Rail 

Company,  which  is  made  defendant  to  this  petition,  and  to  proceed  to  view 
the  site  of  said  crossing,  and  appoint  a  time  and  place  for  a  hearing  of  this 
petition,  and  that  upon  such  hearing  the  Commission  will  enter  an  order  pre- 
scribing: a  proper  device  and  machinery  for  the  protection  of  said  crossing  in 
pursuance  of  an  act  of  the  General  Assembly,  entitled  "An  act  to  protect  per- 
sons and  property  from  danger  at  the  crossings  and  junctions  of  railroads, n 
etc.,  approved  June  2,  1891;  and  petitioner  further  prays  that  the  Commission 
will  fix  in  such  order  the  proportion  of  the  cost  for  the  construction,  mainte- 
nance and  operation  of  such  device  which  each  of  the  parties  hereto  shall 
pay;  and  prays  generally  for  such  other  relief  as  may  be  appropriate  to  the 
case. 


Petitioner. 
Its  Solicitor. 


XIII. 


The  notice  to  be  give  in  pursuance  of  section  1  of  said  act  of  1891,  may  be 
in  substance  as  follows: 

Office  of  the  Railroad  and  Warehouse  Commission  of  the  State  of  Illinois. 
To  the Rail Company: 

You  are  hereby  notified  that  on  the day  of 190 . . , 

the Rail Company  filed  in  the  office 

of  the  Railroad  and  Warehouse  Commission  of  the  State  of  Illinois  a  petition, 
praying  for  the  protection,  by  proper  devices  and  machinery,  of  a  certain 
grade  crossing  of  the  main  tracks  of  your  railroad  and  that  of  the  said  peti- 
tioner, situated 

in  the  county  of ,  in  the  State  of  Illinois,  in  pursuance  of  an 

act  of  the  General  Assembly  approved  June  2,  1891,  entitled  "An  act  to  pro- 
tect persons  and  property  from  danger  at  the  crossings  and  junctions  of  rail- 


407 

roads,"  etc.;  and  you  are  hereby  further  notified  that  under  the  rules  of  said 
Commission  the  said  petition  will  stand  for  hearing  at  the  office  of  said  Com- 
mission in  the  State  House,  in  the  city  of  Springfield,  Illinois,  on. . . . 

the day  of 19  —  at  9  o'clock  a.   m.,   at   which   time  and 

place  the  said  Commission  will  proceed  to  try  the  question  whether  or  not 
the  said  crossing  shall  be  protected  by  interlocking  or  other  devices,  and  in 
case  the  said  companies  are  unable  to  agree,  to  prescribe  if  the  public  good 
is  deemed  to  require  it,  what  kind  of  device,  equipment  and  machinery  shall 
be  put  in  by  the  companies  concerned,  and  the  proportion  of  the  cost  of  the 
construction,  maintenance  and  operation  thereof,  which  each  of  said  com- 
panies shall  pay;   and  you  can,  if  you  think  proper,  appear  through  your 
E roper  officers  or  counsel  at  the  time  and  place  above  mentioned,  and  be  fully 
eard  by  the  Commission  upon  all  the  matters  involved  in  said  petition. 

The  Commission  will,  if  practicable,  advise  you  of  the  time  when  the  site  of 
said  crossing  will  be  viewed,  so  you  may  be  present  if  you  desire. 

Witness Secretary  of  said  Commission,  and 

the  seal  thereof,  at  Springfield,  Illinois,  this 

day  of A.  D.  190.... 


Secretary. 
XIV. 

The  citation  provided  for  in  section  2  of  said  act  of  1891,  may  be  in  sub- 
stantially the  following  form : 

Office  of  the  Railroad  and  Warehouse  Commission  of  the  State  of  Illinois. 
To  the Rail Company : 

WHEREAS,  Facts  have  come  to  the  knowledge  of  the  Railroad  and  Ware- 
house Commission  of  the  State  of  Illinois,  which  give  the  said  Commission 

cause  to  believe  that  the  grade  crossing  between  the  main  tracks  of  the 

Rail Company  and  the 

Rail Company,  situated 

in  the  county  of in  the  State  of  Illinois,  is  probably  danger- 
ous to  the  public,  and  to  persons  operating  trains  across  and  over  the  same, 
and  that  said  crossing  probably  requires  protection  by  proper  devices,  ma- 
chinery and  appliances,  in  accordance  with  an  act  of  the  General  Assembly 
entitled,  "An  act  to  protect  persons  and  property  from  danger  at  the  cross- 
ing and  junctions  of  railroad,"  etc.,  approved  June  2,  1891- 

Now,  therefore,  you,  the  said 

Rail Company,  impleaded  herein  with  the  said 

Rail Company,  are  hereby  notified  and  cited  to  come 

before  the  said  Railroad  and  Warehouse  Commission  at 

on  the day  of 19 ,  at  the  hour  of o'clock 

m.,  then  and  there  to  show  cause  why  you  should  not  be  required  to  unite 

with  said Rail 

Company  in  providing  said  crossiug  with  such  safety  appliances,  devices  and 
machinery,  as  may,  in  the  judgment  of  said  Commission,  after  full  hearing, 
be  thought  requisite  for  the  proper  protection  thereof;  and  said  Commission, 
in  case  the  protection  of  said  crossing  is,  after  hearing,  deemed  necessary, 
will  also,  unless  the  companies  agree  thereon,  prescribe  and  order  proper  de- 
vices, machinery  and  appliances  for  the  protection  of  said  crossing,  and  also 
fix  the  proportion  of  cost  each  company  concerned  shall  pay  for  the  construc- 
tion, maintenance  and  operation  thereof;  upon  all  which  matters  you  will, 
through  your  proper  officer  or  counsel,  be  fully  heard  at  the  time  and  place 
specified,  if  you  see  fit  to  appear. 

Witness Secretary  of  said  Commission,  and 

the  seal  thereof,  at  Springfield,  Illinois,  this 

day  of A.  D.  19.... 

Secretary. 


408 

XV. 

The  form  of  notification  to  be  given  in  cases  arising  under  the  act  of  1889 , 
concerning  crossings,  may  be  in  substantially  the  following  form: 

Office  of  the  Railroad  and  Warehouse  Commission  of  the  State  of  Illinois. 
To  the Rail Company: 

You  are  hereby  notified  that  on  the day  of 19  — 

the Rail Company  filed  in  the 

office  of  the  Railroad  and  Warehouse  Commission  of  the  State  of  Illinois,  a 
petition  praying  the  Commission  for  leave  to  cross  with  its  tracks  the  main 

line  of  your  railroad  at in  the  county  of 

,  in  the  State  of  Illinois,  in  pursuance  of  an  act  of  tke 

General  Assembly,  approved  May  28,1889,  entitled,!"  An  act  in  relation  to  the 
crossing  of  one  railroad  by  another,  and  to  prevent  danger  to  life  and  prop- 
erty from  grade  crossings;"  and  you  are  further  notified  that  under  the  rules 
of  said  Commission,  the  said  petition  will  stand  for  hearing  at  the  office 
of  said  Commission,  in  the  State  House,  in  the  city  of  Springfield,  Illinois,  on 

,  the day  of ,19 — ,  at  9  o'clock  a.  m., 

at  which  time  and  place  you  can  appear  through  your  proper  officers  or  coun- 
sel and  be  heard  upon  the  question  involved  m  said  petition,  if  you  see  fit  to 
do  so. 

The  Commission  will,  if  practicable,  advise  you  of  the  time  when  the  site  of 
said  crossing  will  be  viewed,  so  you  may  be  present  if  you  desire. 

Witness Secretary  of  said  Commission ,  and 

the  seal  thereof,  at  Springfield,  Illinois,  this 

day  of A.  D.  190.... 


Secretary. 


INTERLOCKING  DEVICES. 


Statutory  Provisions  and  Rules  Governing  Same. 


410 


STATUTORY  PROVISIONS. 


Act  relating  to  crossings  on  same  level;  approved  June  3,  1887,  in  force 
July  1,  1887. 

AN  ACT  in  regard  to  dangers  incident  to  railroad  crossings  on  the  same  level. 

SECTION  1.  That  when  and  in  case  two  or  more  railroads  crossing  each 
other  at  a  common  grade,  or  any  railroad  crossing  any  stream  or  harbor  by 
swing  or  draw  bridge,  shall,  by  a  system  of  interlocking  and  automatic  sig- 
nals, or  by  other  works,  fixtures  and  machinery,  to  be  erected  by  them,  or 
either  of  them,  render  it  safe  for  engines  and  trains  to  pass  over  such  cross- 
ing or  bridge  without  stopping,  and  such  system  of  interlocking:  and  signals, 
works  or  fixtures,  shall  first  be  approved  by  the  Railroad  and  Warehouse 
Commissioners,  or  any  two  of  them,  and  a  plan  of  such  interlocking  and  signals, 
.works  and  fixtures  for  such  crossing,  designating  the  plan  of  crossing,  shall 
have  been  filed  with  such  Railroad  and  Warehouse  Commissioners,  then,  and 
in  that  case,  it  is  hereby  lawful  for  the  engines  and  trains  of  any  such  rail- 
road or  railroads  to  pass  over  such  crossing  or  bridge  without  stopping,  any 
law,  or  the  provisions  of  any  law,  now  in  force  to  the  contrary  notwithstand- 
ing; and  all  such  other  provisions  of  laws  contrary  thereto  are  hereby  de- 
clared not  to  be  applicable  in  such  case:  Provided,  that  the  said  Railroad 
and  Warehouse  Commissioners  shall  have  power  in  case  such  interlocking 
system,  in  their  judgment,  shall,  by  experience,  prove  to  be  unsafe  or  im- 
practicable, to  order  the  same  to  be  discontinued.  [As  amended  by  act  ap- 
proved May  28,  1891.] 

§  2.  The  said  Railroad  and  Warehouse  Commissioners  may  appoint  a  com- 
petent civil  engineer  to  examine  such  proposed  system  and  plans,  and  report 
the  result  of  such  examination  for  the  information  of  such  Railroad  and 
Warehouse  Commissioners,  and  said  Railroad  and  Warehouse  Commissioners 
are  hereby  authorized  to  allow  and  reward  five  dollars  per  day  as  a  compen- 
sation for  the  services  of  such  civil  engineer,  or  such  reasonable  sum  as  such 
commissioners  shall  deem  fit,  and  to  allow  and  reward  such  other  and  fur- 
ther sums  as  they  shall  deem  fit  to  pay.  all  other  fees,  cost  and  expenses  to 
arise  under  said  application,  to  be  paid  by  the  railway  company  or  companies 
in  interest,  to  be  taxed  and  paid  or  collected  as  in  other  cases.  And  the  said 
Railroad  and  Warehouse  Commissioners  are  also  empowered,  ou  application 
for  their  apDroval  of  any  such  system  of  interlocking  and  signals,  works  or 
fixtures,  to  require  of  the  applicant  security  for  such  fees,  costs  and  expenses, 
or  the  deposit,  in  lieu  thereof,  of  a  sufficient  amount  in  money  for  that  pur- 
pose, to  be  fixed  by  them. 

APPROVED  June  3,  1887. 


411 

ILLINOIS  INTERLOCKING  ACT,  APPROVED  JUNE  2,  1891. 

AN  ACT  to  protect  persons  and  property  from  danger  at  the  crossings  and  junctions  of 
railroads  by  providing  a  method  to  compel  the  protection  of  the  same. 

SECTION  1.  Be  it  enacted  by  the  People  of  the  State  of  Illinois ,  represented  in 
the  General  Assembly:  That  in  every  case  where  the  main  tracks  of  two  or 
more  railroads  cross  at  a  grade  in  this  State,  any  company  owning  or  oper- 
ating any  one  of  such  tracks,  whose  managers  may  desire  to  unite  with  others 
by  protecting  such  crossing  with  interlocking  and  other  safety  devices,  may 
file  with  the  Railroad  and  Warehouse  Commission  a  petition  stating  the  facts 
of  the  situation,  and  asking  said  Railroad  and  Warehouse  Commission  to 
order  such  crossing  to  be  protected  by  interlocking  signals,  devices  and 
switches,  or  other  safety  appliances.  Said  petition  shall  be  accompanied  by 
a  plat  showing  the  location  of  all  tracks;  and  upon  the  filing  thereof,  notice 
shall  be  given  to  each  other  company  or  person  owning  or  operating  any 
track  involved  in  such  crossing,  and  the  said  Railroad  and  Warehouse  Com- 
mission shall  thereupon  view  the  site  of  said  crossing,  and  shall,  as  soon  as 
practicable,  appoint  a  time  and  place  for  the  hearing  of  such  petition. 

{!  2.  If  the  said  Railroad  and  Warehouse  Commission  shall,  from  informa- 
tion obtained  in  any  manner,  have  cause  to  believe  that  any  such  grade 
crossing  as  described  in  section  one  of  this  act,  is  dangerous  to  the  public,  or 
to  persons  operating  trains,  and  requires  protection,  then  it  shall  be  the  duty 
of  the  said  commission,  without  any  petition,  and  of  its  own  motion,  to  cite 
the  several  companies  or  persons  owning  or  operating  the  railway  tracks 
forming  such  crossing,  to  come  before  said  Commission  at  such  time  and 
place  as  may  be  named,  and  show  cause  why  they  should  not  be  required  to 
provide  such  crossing  with  interlocking  or  other  safety  appliances. 

3  3.  At  the  time  and  place  named  for  hearing  under  any  petition  filed  in 
pursuance  of  section  one  of  this  act,  or  in  any  citation  issued  in  pursuance  9f 
section  two  thereof,  unless  the  hearing  is  for  good  cause  continued,  said 
Railroad  and  Warehouse  Commission  shall  proceed  to  try  the  question  whether 
or  not  the  crossing  shall  be  protected  by  interlocking  or  otherwise,  and  shall 
give  to  all  companies  and  parties  interested  an  opportunity  to  be  fully  heard, 
and  said  Commission  shall,  after  such  hearing,  enter  an  order  upon  a  record 
book  or  docket,  to  be  kept  for  the  purpose,  denying  the  petition  or  discharg- 
ing the  citation  if  the  protection  of  such  crossing  as  proposed  is  deemed  un- 
necessary, or,  if  said  Commission  shall  be  of  opinion,  from  the  evidence  and 
facts  produced,  that  the  public  good  requires  that  such  crossing  be  protected, 
then  the  Commission  shall  enter  an  order  prescribing  an  interlocking  device 
or  equipment  for  such  crossing,  in  case  the  companies  interested  can  not  agree 
upon  a  device,  in  which  order  shall  be  specified  the  kind  of  machine  to  be 
used,  the  switches,  signals  and  other  devices  or  appliances  to  be  put  in,  and 
the  location  thereof,  and  all  other  matters  which  may  be  deemed  proper  for 
the  efficient  protection  of  such  crossing,  and  said  Commission  shall  further 
designate  in  such  order,  the  proportion  of  the  cost  of  the  construction  of  such 
plant,  and  of  the  expense  of  maintaining  and  operating  the  same,  which 
each  of  the  companies  or  persons  concerned  shall  pay.  In  case,  however, 
one  railroad  company  shall  hereafter  seek  to  cross  at  grade  with  its  track  or 
tracks,  the  track  or  tracks  of  another  railroad  company,  and  the  Railroad  and 
Warehouse  Commission  shall  determine  that  interlocking  and  other  safety  ap- 

Eliances  shall  be  put  in,  the  railroad  company  seeking  to  cross  at  grade  shall 
e  compelled  to  pay  all  costs  of   such   appliances,  together  with  the  expense 
of  putting  them  in  and  the  future  maintenance  thereof. 

\  4.  It  shall  be  the  duty  of  every  railroad  company  or  person  owning  or 
operating  any  track  involved  in  any  such  crossing  to  comply  with  and  carry 
out  fully,  or  unite  with  the  others  in  doing  so,  any  order  of  the  said  Railroad 
and  Warehouse  Commission  made  in  pursuance  of  any  proceeding  instituted 
or  had  under  this  act,  such  work  to  be  completed  within  ninety  days  after 
such  order  is  made,  unless  the  Railroad  and  Warehouse  Commission  shall,  for 
good  cause  shown,  extend  the  time,  and  when  any  such  plant  shall  have  been 
completed  and  made  ready  for  use,  it  shall  be  the  duty  of  the  companies  or 
persons  concerned  to  notify  the  said  Railroad  and  Warehouse  Commission 
thereof,  whereupon  said  Commission  shall  inspect  or  cause  to  be  inspected 


412 

the  said  completed  plant  in  the  same  manner  as  is  now  provided  in  the  act 
upon  that  subject,  approved  June  3,  1887;  and  if,  upon  such  inspection,  the 
said  plant  is  deemed  to  be  well  constructed  and  suitable  and  sufficient  for  the 
purpose,  the  said  Railroad  and  Warehouse  Commission  shall  issue  a  permit 
empowering  the  several  companies  or  persons  owning  or  operating  the  tracks 
involved  therein  to  run  such  crossing  without  stopping  under  such  rules  and 
regulations  as  may  be  in  force,  or  may  thereafter  be  adopted,  by  the  said 
Commission,  any  law  now  in  force  upon  the  subject  of  stopping  trams  at  rail- 
way crossings  to  the  contrary  notwithstanding. 

§  5.  Any  company,  person  or  corporation  refusing  or  neglecting  to  comply 
with  any  order  made  by  the  said  Railroad  and  Warehouse  Commission  in  pur- 
suance of  this  act  shall  forfeit  and  pay  a  penalty  of  $200  for  each  week  of  re- 
fusal and  neglect,  the  same  to  be  recovered  in  an  action  of  debt  in  the  name 
of  the  People  of  the  State  of  Illinois,  and  to  be  paid,  when  collected,  into  the 
county  treasury  of  any  county  where  any  such  suit  may  be  tried. 

\  6.  All  expenses  incurred  in  any  proceeding  under  this  act  shall  be  paid 
by  the  railway  companies  concerned,  in  equal  portions,  upon  bills  to  be  ren- 
dered by  the  Secretary  of  said  Commission. 

\  7.  Every  junction  of  two  or  more  railroad  tracks,  whether  the  tracks 
joining  each  other  are  owned  by  different  companies-  or  by  the  same  company, 
shall  be  taken  and  deemed  to  be  a  crossing  within  the  meaning  of  this  act: 
Provided,  that  this  section  shall  not  apply  to  switch,  spur  or  side  tracks. 

(For  rules  governing  the  construction  of  interlocking  devices,  see  next  page.) 


413 


RULES    GOVERNING    THE   INSTALLATION   OF   INTER- 
LOCKING DEVICES. 


For  the  information  of  railroad  officials  contemplating  the  construction  and 
operation  of  interlocking  devices  for  the  protection  of  grade  crossings  and 
junctions,  in  accordance  with  the  statutory  provisions  governing  the  same,  as 
defined  in  the  foregoing  acts,  the  following  general  rules  and  specifications 
are  adopted  and  will  be  held  as  requirements  by  the  Railroad  and  Warehouse 
Commission,  where  the  approval  of  any  such  interlocking  signals  and  switches 
or  permit  for  operating  the  same,  is  applied  for,  as  provided  in  the  several 
acts  of  the  General  Assembly  concerning  interlocking: 


INFORMATION  TO  BE  PILED  WITH  THE    SECRETARY    OP    THE    COM- 
MISSION WITH  PETITION  FOR  APPROVAL   OF  ANY  PLAN,  AND 
FOR  INSPECTION  OF   ANY    INTERLOCKING    SYSTEM. 

I. 

Prior  to  the  commencement  of  the  erection  of  an  interlocking 
system,  there  should  be  filed  with  the  Secretary  of  the  Commis- 
sion, for  approval  of  or  amendment  by  the  Consulting  Engineer, 
a  complete  plan  in  duplicate  showing  the  location  of  all  main 
tracks,  sidings,  switches,  cross  overs,  spur  tracks,  buildings  and 
other  obstructions  to  the  view,  at  or  in  the  vicinity  of  the  crossing 
or  junction  to  be  protected;  also  showing  the  proposed  location  of 
all  switch  points,  signals,  locks,  detector  bars,  tower,  etc., — the 
same  to  be  fixed  by  measurement  indicated  by  plain  figures,  or  by 
a  plan  drawn  to  a  scale  of  no  less  than  fifty  feet  nor  more  than 
one  hundred  feet  to  one  inch. 

The  grade  of  each  track  per  one  hundred  feet  must  be  shown  on 
the  said  plan,  also  the  direction  in  which  trains  are  moved  there- 
on. All  tracks  must  be  marked  "main,"  "side,"  "transfer," 
etc.,  according  to  use. 

At  each  switch,  derail,  signal,  detector  bar,  lock,  etc.,  shown 
on  the  said  plan  there  must  be  marked  the  number  of  the  lever  to 
operate  the  same. 

II. 

A  petition  for  inspection  of  any  interlocking  system  filed  as 
provided  in  the  acts  of  1887  and  1891,  must  be  accompanied  by  a 
plan  similar  to  that  described  in  Article  I,  with  all  corrections 
made  thereon  that  may  be  necessary  to  show  the  interlocking  sys- 
tem as  completed. 


Request  for 
approval  of 
plan. 


Plan  of  com- 
pleted sys- 
tem. 


414 


Diagram 
locking. 


of 


Manipulation 
.sheet. 


Copy  of  rules. 


Style   of    sig 
nals. 


Home  signal. 


III. 

A  complete  diagram  of  locking  must  be  furnished  with  petition 
for  inspection  of  any  interlocking  system.  This  diagram  must 
correspond  with  the  arrangement  of  locking  dogs  as  finally  lo- 
cated and  fixed. 


IV. 

A  manipulation  sheet  showing  the  combination  necessary  to  be 
set  up  for  each  of  the  several  routes  governed  by  signals  must  be 
furnished  with  petition  for  inspection. 


V. 

Where  special  instructions  are  issued  for  the  guidance  of  em- 
ployed using  the  tracks  within  the  limits  of  an  interlocking  system 
of  unusual  complicity,  a  copy  of  such  instructions  should  be  fur- 
nished with  the  petition  for  inspection. 


IMPORTANT    REQUIREMENTS    AND    RECOMMENDATIONS    FOR    GUID- 
ANCE IN  CONSTRUCTION. 


VI. 

It  being  desirable  that  a  uniform  system  of  signals  should  be 
used  at  all  interlocking  systems,  it  is  recommended  that  all  sig- 
nals should  be  of  the  semaphore  type.  All  signals  must  be  so 
constructed  as  to  go  to  the  danger  position  by  force  of  gravity  in 
ase  the  connections  between  the  operating  lever  and  the  signal 
are  broken.  All  signals  must  be  provided  with  a  lamp,  showing 
front  lens  properly  focused,  and  a  back  light,  except  as  herein- 
after provided. 

VII. 

The  home  signal  should,  when  practicable,  be  located  on  the 
engineman's  side  of  the  track  it  governs,  and  should  not  be  less 
than  fifty  (50)  feet  nor  more  than  two  hundred  (200)  feet  in  ad- 
vance of  the  point  it  governs,  except  where  special  conditions 
exist.  The  signal  mast  point  to  the  right  of  the  track  it  governs, 
and  should  have  a  square  end.  When  the  derail  or  facing  point 
or  crossing  is  set  against  the  train  movements  governed  by  the 
aomc  signal,  the  signal  must  be  locked  in  a  horizontal  position, 
showing  red,  or  danger  color  light  by  night,  indicating  "danger — 
stop."  When  the  track  it  governs  is  clear  and  safe  for  the  pas- 
sage of  trains  the  signal  may  be  inclined  at  an  angle  of  about 
sixty  (60)  degrees  or  more,  from  the  horizontal,  showing  a  white 
or  line  clear  Tight  by  night  to  approaching  train,  indicating  "clear 
:rack — advance."  In  case  two  signal  arms  are  used  on  the  home 
signal  post  the  top  signal  should  in  all  cases  govern  main  or  high 
speed  routes,  and  the  lower  signal  the  diverging  route  or  routes, 
[n  mechanical  interlocking  systems  the  home  signal  may  be 
worked  by  either  pipe  or  wire  connections.  In  case  wire  is  used 
;here  must  be  two  lines. 


415 


VIII. 

The  distant  signal  should  be  located  not  less  than  twelve  hun- 
dred (1200)  feet  m  advance  of  the  home  signal  with  which  it  op- 
erates, on  the  same  side  of  track,  with  the  arm  pointing  in  the 
same  direction.  The  distant  signal  should  be  distinguished  by  a 
notch  cut  in  the  end  of  a  semaphore  arm.  It  must  be  so  arranged 
and  connected  with  the  home  signal  that  it  will  be  held  in  a  hor- 
izontal position,  showing  green  or  caution  color  light  by  night  to 
approaching  train  when  the  home  signal  indicates  danger.  The 
distant  signal  must  be  worked  by  two  lines  of  wire. 

IX. 

Rotating  indicators,  known  as  pot  or  disc  signals,  should  only 
be  used  as  switch  indicators,  operating  with  the  switch. 

X. 

Dwarf  signals  haying  a  small  arm  and  suitably  adapted  as  to 
height,  should  be  similar  in  design  and  location  to  the  home  sig- 
nal. They  should  be  used  only  to  govern  movements  on  secon- 
dary tracks  or  movements  against  the  current  of  traffic  on  main 
tracks  when  such  reverse  movements  become  necessary,  and 
where  necessary  in  yards. 

XI. 

Bracket  posts  should  be  used  in  all  cases  where  it  is  necessary 
to  signal  trains  on  different  tracks,  operated  in  the  same  direc 
tion,  from  the  same  main  post;  the  position  of  the  posts  on   the 
bracket  to  correspond  to  the  position  of  the  track  on  which  move 
ments  are  to  be  governed. 

XII. 

The  signal  man  in  the  tower  should  be  able  to  see  the  arms  and 
the  back  lights  of  all  signals;  the  back  lights  of  the  lamps  to  be 
made  as  small  as  practicable,  having  regard  to  efficiency.  When 
the  front  lights  are  visible  to  the  signalman  in  the  tower  no  back 
lights  will  be  required.  If  from  any  unavoidable  cause  the  arm 
or  light  of  any  signal  can  not  be  seen  by  the  signalman,  a  re- 
peater or  indicator  should  be  provided  in  the  signal  tower. 

XIII. 

The  fixed  light  in  the  signal  tower  should  be  screened  off  so  as 
not  to  be  mistaken  for  the  signals  exhibited  to  control  the  run 
ning  of  trains. 

XIV. 

When  the  grade  is  practically  level,  the  derailing  points  on 
high  speed  tracks  shall  be  located  not  less  than  five  hundred  (500) 
feet  in  advance  of  crossing  or  fouling  point  which  it  is  intended 
to  protect;  bat,  in  case  of  a  descending  grade  toward  the  crossing 
or  fouliug  point,  the  derailing  point  must  be  located  at  such  a 
distance  from  the  crossing  or  fouling  point  as  to  give  the  same 
measure  of  protection  that  is  required  for  level  approach. 

When  in  the  opinion  of  the  Consulting  Engineer  of  the  Com- 
mission the  train  service  and  character  of  traffic  on  any  high 
speed  track  is  such  that  the  above  limit  can  be  varied  from,  he 
may  approve  location  of  derails  at  such  a  distance  in  advance  of 
crossing  or  fouling  point  as  in  his  judgment  would  give  an  equal 
measure  of  protection. 


Distant   s  i  g- 

nals. 


Switch     indi- 
cators. 


Dwarf  Signal. 


Bracket  posts. 


General  a  r  - 
rangement 
of  signals. 


Fixed  lights 
in  tower. 


Derails  .in 
high  speed 
tracks. 


416 


Guard  rails. 


Derail  point* 
o  n  second • 
ary  tracks. 


Where  a  single  main  high  speed  track  crosses  another  railroad 
at  grade,  and  trains  are  moved  in  both  directions  on  such  single 
track,  then  derails  must  be  provided  therein  on  both  sides  of  the 
rossing  in  accordance  with  the  foregoing  requirements. 

Guard  rails  will  be  required  in  interlocking  systems  hereafter 
constructed  wherever  the  Consulting  Engineer  shall  deem  them 
necessary. 

XV. 

On  secondary  tracks,  such  as  switching,  drilling,  storage  and 
low  speed  tracks,  the  derail  point  should  be  located  so  as  to  give 
the  same  measure  of  safety  required  for  high  speed  tracks. 

XVI. 


Derail  for 
main  track 
er  ossing 


When  the  crossing  is  made  by  a  switching,  drilling,  storage  or 
low   speed  track  with   a  high  speed  track  on  which  trains  are 
second  ary  moved  in  both  directions   the  derail  on  the  high  speed   track 
should  be  located  on  each  side  of  the  crossing,  and  at  the  dis- 
tance therefrom   indicated  in  article  XIV.      A  derail  should  be 
located  on  the  secondary  tracks  on  each  side  of  the  crossing,  ac- 
ording  to  the  requirements  of  article  XV. 


track. 


Derails  on 
second  ary 
track. 


Derails   on 


spur 

or  sidings. 


Derails  on 
double  track 
— b  a  c  k  -  u  p 
derails. 


Derails  —  how 
worked. 


Locks  for  de- 
rails, slip 
switches 
and  movable 
point  frogs. 


XVII. 

In  case  two  or  more  secondary  low  speed  tracks  cross  each 
other  at  grade,  each  track  should  be  provided  with  a  derail  on 
each  side  of  the  crossing.  The  distance  of  the  derail  in  advance 
of  the  crossing  should  be  governed  by  the  kind  of  traffic  upon 
such  tracks,  provided  that  the  same  measure  of  safety  is  secured 
at  such  crossings  as  is  required  for  the  protection  at  crossings  of 
high  speed  tracks. 

XVIII. 


In  case  a  spur,  siding  or  switch  track  connects  with  the  main 
f™^*  track  between  the   derail  and  the  crossing  which  it  protects,  the 
spur  or  siding  should  be  treated  as  the  crossing  track,  and  be 
provided  with  a  derail  in  accordance  with  the  foregoing  require- 
ments. 


XIX. 

In  case  of  double  track  crossings  where  trains  are  moved  on 
each  track,  as  a  rule,  in  one  direction,  a  derail  should  be  pro- 
vided for  back  up  movements,  and  for  the  further  purpose  of  in- 
suring clearance  of  crossing  before  the  clearance  signal  can  be 
given  on  opposite  route.  The  back-up  derail  should  be  placed  not 
less  than  one  hundred  and  fifty  (150)  feet  nor  more  than  three 
hundred  (300)  feet  from  the  crossing. 

XX. 

In  mechanical  interlocking  plants  all  derails  and  point  switches 
whether  facing  or  trailing,  must  be  worked  either  by  iron  or  steel 
pipe  not  less  than  one  inch  in  diameter. 

XXI. 

All  slip  switches,  movable  point  frogs  and  derails  should  be 
locked  either  by  a  separate  line  of  connections  from  those  used  to 
move  such  slip  switches,  movable  point  frogs  or  derails  or  by 
double  pointed  switch  and  lock  movement  of  approved  pattern. 


417 


Where  the  double  pointed  switch  and  lock  movement  is  used  on 
high  speed  main  tracks  it  must  be  in  connection  with  a  bolt  lock 
operated  with  the  home  signal,  which  indicates  the  position  of  the 
facing  point. 


a  Switch  move- 
ments. 


Detector  bars. 


XXII. 

Switch  movements  should  be  located  on  long  ties  extending 
sufficient  distance  from  the  rail  or  on  other  suitable  foundation, 
and  the  switch  movement  should  be  further  connected  with  the 
rails  by  a  continuous  plate  extending  under  the  rails,  fitted  with 
rail  braces  to  insure  accurate  adjustment  and  maintenance  of 
guage  of  track.  All  ties  to  which  lock  movements  or  switch  and 
lock  movements  are  fastened  should  be  firmly  strapped  to  ad- 
jacent ties. 

XXIII. 

All  derails,  facing  point  switches,  sketch  blocks,  torpedo  sig- 
nals or  other  fixtures  used  in  either  changing  the  route  or  imped- 
ing the  progress  of  trains  shall  be  protected  by  detector  bars. 
These  detector  bars  must  be  at  least  fifty  (50)  feet  in  length.  The 
first  interval  of  the  movement  of  the  switch  lever  which  with- 
draws the  locking  pin  must  at  the  same  time  raise  the  detector 
bar  above  the  level  of  the  rail.  The  final  movement  of  the  switch 
lever  must  advance  the  detector  bar  to  its  normal  position — level 
with  the  rail.  If  the  detector  bar  is  not  worked  on  the  switch 
lever  it  must  be  actuated  before  the  switch  is  moved  in  either  di- 
rection. 

XXIV. 

When,  in  the  opinion  of  the  Consulting  Engineer  of  the  Com- 
mission, it  is  practicable,  detector  bars  or  electric  locking  will  be 
required  at  each  crossing.  Crossing  bars  should  be  interlocked 
with  the  movement  that  operates  the  derails,  to  insure  a  clear 
crossing  before  an  opposing  route  can  be  set  or  signal  be  given. 

XXV. 

In  all  mechanical  interlocking  the  levers  by  which  points  and  Arrangement 
signals  are  worked  should  be  grouped  in  a  tower  and  supported 
on  a  suitable  foundation,  which  should  be  independent  of  the 
foundation  of  the  tower.  All  levers  should  be  pivoted  on  one 
common  center.  So  far  as  may  be  practicable  and  consistent 
with  a  simplified  lead-out,  the  levers,  especially  in  large  ma- 
chines, should  be  so  arranged  that  those  used  in  any  route  com- 
bination shall  be  near  together,  preference  being  given  to  combi- 
nations most  often  set  up.  The  levers  should  be  numbered  from 
left  to  right.  The  visible  parts  of  the  levers  above  the  machine, 
except  the  finished  part  of  the  handle,  should  be  painted  as  fol- 
lows: Switch  levers,  black;  lock  levers,  blue,  switch  and  lock 
levers,  black  and  blue;  home  signal  levers,  red;  distant  signal 
levers,  green;  and  movable  point  frog  levers,  yellow. 


XXVI. 

The  locking  should  be  actuated  by  the  action  of  the  latch  rod, 
or  by  a  device  performing  similar  service  in  advance  of  the  first 
movement  of  any  lever.  The  first  act  in  reversing  a  lever  must 
ock  the  levers  of  all  conflicting  routes. 


Detector  bar 
at  crossings. 


of  levers  in 

mechanical 

machine. 


Preliminary 
locking:. 


— 27  O 


418 


Locking 
levers. 


of 


Signal  towers. 


Automatic 
compensa- 
tors. 


Foundation  of 
pipe  com- 
pensators 
and  cranks. 


General  re- 
quirements . 


System  to  be 
complete 
when  in- 
spection is 
requested. 


XXVII. 

The  levers  should  be  so  arranged  that  while  the  signals  are  in 
their  normal  position,  i.  e.,  at  Danger,  the  levers  operating  points 
shall  be  free  to  move:  Provided,  however,  that  the  preliminary 
act  of  reversing  any  lever  shall  lock  all  signal  levers  controlling 
opposing  routes.  The  arrangement  of  locking  must  be  such  as  to 
make  it  impossible  for  the  signalman  to  lower  the  signal  for  the 
approach  of  the  train  until  he  has  first  set  the  points  in  proper 
position  for  it  to  pass  over  the  route  governed  by  such  signal. 
The  locking  must  be  so  devised  as  to  make  it  impossible  for  the 
signalman  to  exhibit  at  the  same  moment  any  two  signals  or  com- 
bination of  signals  that  can  lead  to  a  collision. 

XXVIII. 

5  Signal  towers  should  be  so  placed  and  of  such  height  as  to 
afford  the  best  possible  view  of  the  signals  and  other  parts  of  the 
interlocking  system.;  ... 

vrrrTp»    '""  «•  ••**•     '  ~~~"  :      "VVTV          Tr—*   ' *7  ~'  ~"*  ' 

iil   ._*J  Rfciig  •""•j          j    A.A.1A.      ,^_.    •»»•'•;—••-! 

Each  line  of  pipe  operating:  points  must  be  automatically  com- 
pensated. Such  automatic  compensators  must  be  located  at  such 
intervals  in  the  line  as  to  completely  provide  for  expansion  and 
contraction  at  various  temperatures. 

XXX. 

All  pipe  compensators  and  cranks  must  be  fixed  on  suitable 
foundations. 

XXXI. 

In  case  there  are  cross-overs,  turn-outs  or^'other  connecting 
tracks  involved  in  the  general  system  upon  which  the  movement 
of  cars  and  trains  present  an  element  of  danger,  which  danger 
will  be  enhanced  by  the  passage  of  trains  over  crossings  or  junc- 
tions without  stopping,  and  subsequently  at  higher  speed  than 
would  be  the  case  without  the  permit  sought,  then,  and  in  all 
such  cases,  whether  such  enhanced  danger  be  of  collision  between 
different  cars  or  trains  of  the  same  road,  or  between  cars  or  trains 
of  different  roads,  it  will  be  necessary,  in  addition  to  the  protection 
oj  the  main  crossing,  to  provide  by  the  proper  devices  and  appliances 
against  any  such  increased  collateral  dangers  in  the  same  complete 
manner  that  is  required  in  the  case  of  the  main  crossing.  The  ma- 
terial and  workmanship  must  be  in  all  respects  first-class,  and  the 
entire  system  must  be  constructed  in  accordance  with  the  best 
practice  in  signaling,  and  as  a  whole  must,  when  completed,  se- 
cure protection  at  every  point  within  its  limits,  and  be  in  every 
way  suitable  and  sufficient  for  the  purpose. 


XXXII. 

Inspection  for  issue  of  permit  will  not  be  made  until  the  entire 
system  is  completed,  connected  and  operated  under  orders  to  hold 
home  signal  against  trains  until  they  have  made  a  full  stop  for 
the  crossing  or  junction  governed  by  such  signal.  And  in  no 
case  will  the  inspection  be  made  until  all  information  hereinbe- 
fore specified  to  be  furnished  to  the  Secretary  shall  be  on  file  in 
the  office  of  the  Commission. 


419 


Changes  in 
system  after 
permit  is  is- 
sued. 


XXXIII. 

In  case  any  company  desires  to  make  any  change  in  the  me- 
chanical construction,  arrangement  or  location  of  any  interlock- 
ing system  or  machine  now  or  hereafter  operated  under  permit  of 
the  Railroad  and  Warehouse  Commission,  or  any  of  the  parts  of 
such  system,  a  new  or  supplemental  petition,  with  amended  plans, 
shall  be  filed  with  the  Secretary  of  the  Commission,  showing: 
specifically  the  nature  of  the  changes  proposed,  and  a  new  per- 
mit procured  thereon  to  operate  such  system  as  changed  or 
amended,  and  any  such  change  made  without  a  new  permit  first 
being  procured  in  pursuance  of  this  rule,  or  any  change  made  by 
any  company  in  the  manner  of  moving  cars  and  engines  within 
the  limits  of  the  interlocking  system  not  contemplated  by  the 
Commission  when  the  permit  was  issued,  will  be  deemed  ipso 
facto  to  work  a  forfeiture  of  the  permit. 

XXXIV. 

Blank  forms  for  monthly  reports  of  inspection  and  maintenance 
will  be  supplied  to  each  railroad  company  having  interlocking 
equipment  in  operation  under  authority  from  the  Commission, 
and  on  the  first  day  of  each  month  it  shall  be  the  duty  of  the 
proper  officer  of  each  company  to  answer  thereon  as  fully  as 
practicable,  and  separately  for  each  interlocking  system  or  de- 
vice, ihe  questions  set  forth,  and  promptly  forward  the  same  to 
the  Consulting  Engineer  of  the  Commission  at  Springfield. 

In  the  event  of  a  disagreement  in  the  reports  submitted  for  any 
interlocking  system  or  device,  and  where  such  disagreement  calls 
in  question  the  safe  operation  thereof,  it  shall  be  the  duty  of  the 
Consulting  Engineer  to  examine  such  system  or  device  and  report 
its  condition  to  the  Commission.  1 

Approved  and  adopted  by  the  Railroad  and  Warehouse  Commission  Sep- 
tember 8,  1897. 

WILLIAM  KILPATRICK,  Secretary. 
FRANK  G.  EWALD,  Consulting  Engineer. 


Monthly  re- 
ports of  the 
general  con- 
dition, etc., 
of  each  in- 
terlocking 
system. 


421 


INDEX. 


OPINIONS    IN   CROSSING   CASES. 

Chicago  &  Calumet  Terminal  R.  R.  Co ) 

vs.  fLaGrange 1-12 

Chic  afro,  Burlington  &  Quincy  R.  R.  Co J 

Chicago, Madison  &  Northern  R.  R.  Co 1 

vs.  f  Town  of  Cicero 23-35 

The  Belt  Ry .  of  Chicago J 

Chicago.  Madison  &  Northern  R .  R .  Co .--1m 

vs                                             I  Town  of  Cicero,  Petition  for  re- 
TheBeltRy.  of  Chicago  ..'. J     hearing 37-42 

Chicago,  Madison  &  Northern  R.  R.  Co "1 

VS 

Chicago  &  Western  Indiana  R.  R.  Co.  and  Pitts- [Stewart  A  ve 43-52 

burgh, Ft.  Wayne  &  Chicago  Ry.  Co J  ( 

St.  Louis  &  Eastern  Ry ) 

vs.  XPeters 77-81 

Toledo,  St.  Louis  &  Kansas  City  R.  R.  Co J 

Jacksonville,  Louisville  &  St.  Louis  Ry .  Co ~| 

vs.  ^Litchfleld 105-108 

The  Wabash  Ry.  Co j 

Chicago  &  Alton  R.  R.  Co ) 

vs.  VPaducah  Junction 113-123 

Illinois  Central  R.  R.  Co.  and  The  Wabash  R.  R.  Co. ) 

Chicago,  Peoria  &  St.  Louis  Ry.  Co ) 

vs.  ^Jacksonville  Junction 125-130 

Chicago  &  Alton  Ry.  Co.  and  The  Wabash  R.  R.  Co. ) 

Chicago  &  Alton  R.  R.  Co  . 

Chicago  &  Western  Indiana  R.  R.  Co.  and  Atchi-  \  Hawthorne 131-138 

son.Topeka  &  Santa  F6  R.  R.  Co  , 

Chicago  &  Alton  R.  R.  Co ) 

vs.  ^Corwith 139-144 

Atchison,Topeka&  Santa  Fe"  R.  R.  Co J 

Centralia  &  Chester  R.  R .  Co  . . .  . . ) 

vs.  ^Nashville 169-173 

Louisville  &  Nashville  R.  R.  Co J 

Tamaroa  &  Mt.  Vernon  Ry.  Co ] 

vs. 

ille 

St.  Louis  Ry.  Co. 

Chicago  &  Alton  R.  R.  Co "j 

VS 

Chicago  &  Western  Indiana  R.  U.  Co.  and  Atchi-  f  Hawthorne 181-185 


Louisville  &_Nashville  R.°R.  Co    and  Southeast  &  j"Mt-  Vernon 175-180 


son.Topeka  &  Santa  F6  R.  R.  Co 


Baltimore  &  Ohio  &  Chicago  R.  R.  Co ) 

vs.  >•  Commercial  A ve 187-191 

Scuth  Chicago  City  Ry.  Co ) 

Chicago  &  Alton  R.  R.  Co ) 

vs.  VNormal 193-197 

llinois  Central  R.IR.  Co ) 


422 

Peoria  &  Pekin  Union  Ry.  Co ) 

vs.  ^Peoria 199-204 

Peoria  Terminal  Ry.  Co J 

Madison.  Illinois  &  St.  Louis  Ry.  Co 1 

WabashR.  R.  Co.,  Cleveland,  Cincinnati,  Chicago  f Kinder  211-217 

&  St.  Louis  Ry.  Co.  and  Chicago  &  Alton  R.  R.  CoJ 

Chicago  &  Eastern  Illinois  R.  R.  Co 1 

vs.  VWatseka 219-222 

Toledo,  Peoria  &  Western  Ry.  Co J 

Wabash  Railroad  Co } 

vs. 

Jacksonville,  Louisville  &  St.  Louis  Ry.  Co | 

!•  Litchfleld  247-2  5 

Jacksonville,  Louisville  &  St.  Louis  Ry.  Co I 

vs. 
St.  Louis  &  Chicago  Ry.  Co ) 

Wabash  Railroad  Co ) 

vs.  XLitchfleld 253-254 

Chicago,  Peoria  &  St.  Louis  Ry.  Co J 

Madison,  Illinois  &  St.  Louis  Ry.  Co ] 

WabashR.  R.  Co.,  C.,  C.*!'C.  &  St.  L.  Ry.  Co.  and[Kinder 267-271 

Chicago  &  Alton  R.  R.  Co J 

Belleville  City  Ry.  Co ) 

vs.  ^Cahokia 285-289 

Louisville,  Evansville  &  St.  Louis  Cons.  R.  R.  Co.  J 

Chicago,  Paducah  &  Memphis  R.  R.  Co ) 

vs.  ^Mt.  Vernon 289-290 

Louisville.  Evansville  &  St.  Louis  Cons.  R.  R.  Co. ) 

Centralia  &  Chester  R.  R.  Co ) 

TS.  ^Nashville 291-292 

Louisville  &  Nashville  R .  R .  Co ) 

Illinois  Central  R.  R.  Co ) 

vs.  XPaxton  326-327 

Lake  Erie  &  Western  R.  R.  Co J 

Terre  Haute  &  Indianapolis  R.  R.  Co ) 

vs .  fGreenup 327-328 

Peoria,  Decatur  &  Evansville  Ry.  Co J 

Chicago  &  Alton  Ry.  Co ) 

vs.  J-Alton 337-343 

Alton  Railway  &  Illuminating  Co J 

Illinois  Central  R.  R.  Co ) 

vs.  >Tamaroa 344-345 

Wabash,  Chester  &  Western  R.  R.  Co j 

St.  Louis,  Peoria  &  Northern  Ry.  Co ) 

vs.  XPekin 34C-350 

C..C..C.  &St.  L.  Ry.  Co j 

St.  Louis,  Peoria  &  Northern  Ry.  Co ) 

vs.       •  > Green  Valley 350-353 

Peoria,  Decatur  &  Evansville  R.  R.  Co J 

Illinois  Central  R.  R.  Co ) 

vs.  >Mattoon 354-355 

Peoria,  Decatur  &  Evansville  Ry.  Co J     - 

St.  Louis,  Peoria  &  Northern  Ry.  Co ) 

vs.  ^Green  Valley 370-371 

Peoria,  Decatur  &  Evansville  Ry.  Co I 

Illinois  Central  R.  R.  Co ] 

Chicago  &  Eastern  Illinois  R.   R.   Co.  and  Indiana.  [Tuscola 376-377 

Decatur  Western  Ry.  Co J 

Rock  Island  &  Peoria  Ry.  Co ) 

vs.  Rock  Island , 377-378. 

Davenport,  Rock  Island  <&  Northwestern  Ry.  Co  ,.,  I 


St.  Louis,  Vandalia  &  Terre  Haute  R.  R.  Co } 

vs  >Casey 380-381 

Indianapolis,  Decatur  &  Western  Ry.  Co ) 

St.  Louis.  Vandalia  &  Terre  Haute  R.  R.  Co ) 

vs.  >Smithboro 382-383 

Jacksonville  &  St.  Louis  Ry.  Co ) 

C..  C.,  C.  &  St.  L.  Ry.  Co ) 

vs.  VMackmaw 383-384 

Terre  Haute  &  Peoria  Ry.  Co  J 

The  Wabash  Railroad  Co  \ 

vs.  VReddick 385-386 

Indiana.  Illinois  &  Iowa  R.  R.  Co J 

Illinois  Central  R.  R.  Co "I 

vs.  fArcola 388-389 

Terre  Haute  &  Indianapolis  R.  R.  Co J 

COMPLAINTS. 

Citizens  of  Lansing ) 

vs.  f  Removal  of  Depot 23-28 

Chicago,  St.  Louis  &  Pittsburgh  R.  R.  Co J 

Joseph  Taylor ] 

vs.  ^Extortion o3-59 

Ohio  &  Mississippi  Ry.  Co J 

Union  Brewing  Co.  of  Peoria } 

vs.  ^Refusal  to  Switch  Cars 61-68 

Chicago,  Burlington  &  Quincy  R.  R.  Co J 

Lyon  &  Scott 1 

Peoria  &  Pekin  Union  Ry.  Co.  and  Illinois  Car  Ser-  \ Refusal  to  Switch  Cars 69'76 

vice  Ass'n  of  Peoria J 

Cowles  &McKee ) 

vs.  ^Extortion 99-104 

Chicago,  Rock  Island  &  Pacific  Ry.  Co J 

Citizens  of  Shawneetown  ) 

vs.  ^Insufficient  Train  Service 205-209 

Louisville  &  Nashville  R.  R.  Co J 

MISCELLANEOUS. 

Application  of  Rules  Grain  Inspection  Department 13-21 

Communications  relative  to  application  of  Commissioners'  Live  Stock  Schedule  —  83-91 
Claim  for  damages  Erroneous  Inspection  of  Grain— Opinion  of  Attorney  General —  93-97 
Interlocking  Act  approved  June  2, 1891 109-112 

Claim  of  McCourtie,  Hill  &  Co ~| 

vs.  [-Appeal  from  Grading 145-146 

Grain  Inspection  Dept.,  Chicago J 

Claim  of  W.  W.  Hunter ) 

vs.  VError  in  Certificate 151-156 

Grain  Inspection  Dept.,  Chicago ) 

Opinion  of  Attorney  General— Duty  of  Railroad  Companies  to  Switch  Cars i.  157-168 

Correspondence  relating  to  Schedule  of  Rates,  Train  Service,  etc 223-242 

Railway  Accounting 255-266 

Letter  of  Chairman  to  Chicago  Board  of  Trade  relative  to  Storage  of  Grain  in  Ele- 
vators   293-294 

J.C.Shirley ^. loemand  for  redemption  of  cou- 

Chicago  &  Northwestern  Ry.  Co J     P°ns 243,246 

Citizens  of  Benton ] 

St.  Louis.  Alton  &  Terre  Haute  R.  R.  Co f  Inadequate  train  service 272. 278 

(See  Supreme  Court  decision,  page  295) 

Wm.  H.  King  &  Son...  ..) 

vs.  VExtortion 279,281 

Pittsburgh.  Ft.  Wayne  &  Chicago  Ry.  Co J 


424 

Mexican  Amole  Soap  Co 


TT   •     vs^,u-  P  y  Refusal  to  switch  cars 282,284 

Peoria   &    Pekm   Union.   Chicago.    Burlington   &  I 
Quincy  and  Chicago.Rock  Island&PacificR.R.Cos  J 

The  People ] 

*  rn        VCT'    4.    r>  r>  n  \  Inadequate  train  service 295,306 

St,  Louis.  Alton  &  Terre  Haute  R.  R.  Co 1 

(Decision  Illinois  Supreme  Court) 

J  ames  Brown ) 

vs.  X  Extortion 307, 3J2 

Chicago  &  Alton   R.    R.  Co ) 

John  C.  Ross  and  John  Hill.  Jr )  „  .. 

vs  (,  Petition   for   revocation   of   h- 

George  A.  Seaverns.  etal..' j     cense 313.321 

O.  L.  Brining ) 

vs.  ^Refusal  to  switch  cars 322, 325 

C..  C..  C.  &St.  L.  R.  R.  Co.... j 

Joseph  W.  Vance  and  Wm.  E.  Washburn  Egyptian] 

Coal  Co (Overcharge  for  switching 329,330 

vs. 
Chicago,  Paducah  &  Memphis  R.  R.  Co J 

Millers'  Association  of  Illinois ") 

vs.  ^Discrimination 331,335 

Railroad  Companies  of  Illinois J 

Chicago  Live  Stock  Exchange ") 

vs 

C.  &  N.  W..  C..  B.  &  Q..  C.,'R.  I.  &  P.,  and  C.,  M.  &  f  Extortion 336 

St.  P.  Ry.  Cos J 

O.  L.  Brining ) 

vs.  VTo  replace  "Y" 356.357 

C..  C-.  C.  &  St.  L.    Ry.  Co j 

Postal  Telegraph  Co...        lTo  compel  delivery  of  material 

Mobile  &  Ohio  R.  R.  Co....' j     between  stations 358,361 

Citizens  of  Wyoming,  111 ) 

vs.  f  Removal  of  depot 362,363 

Chicago,  Burlington  &  Quincy  R.  R.  Co J 

Chicago  Live  Stock  Exchange ) 

vs.  ^Revision  of  live  stock  schedule  363.370 

Various  Railroads ) 

Citizens'  Coal  Mining  Co ) 

vs.  f  Excess  Switching  charges 372-373 

Chicago  &  Alton  R.  R.  Co ) 

Boston  Water  &  Light  Co ) 

vs.  >Excebs  Switching  Charges 373-376 

St.  Louis,  Chicago  &  St.  Paul  R.  R.  Co ) 

Lake  Erie  &  Western  R.  R.  Co V 

vs.  >- Addition  to  Tower  at  Paxton  . . .  378-380 

Illinois  Central  R.  R.  Co J 

John  Miller  ) 

vs.  ^Overcharge  of  Freight  Rates...  386-388 

C..  C..C.  &  St.  Louis  Ry.  Co j 

William  Atzel ) 

vs.  ^Extortion 389-393 

Chicago  Terminal  Transfer  R.  R.  Co j 

Keeney  &  Little ) 

vs.  ^Discrimination 393-395 

Toledo,  Peoria  &  Western  R.  R  Co ) 

Blank  form  of  complaint  and  answer 403 

Rules  governing  all  proceedings  before  the  Commission 397 

Rules  governing  the  installation  of  interlocking  devices 413 

Rules  of  practice  in  crossing  and  interlocking  cases 404 

Statutory  provisions  governing  interlocking  devices 409 


